INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH JURISDICTION.
SUBJECT TO COMPLETION -- PRELIMINARY PROSPECTUS SUPPLEMENT,
DATED OCTOBER 24, 1996
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED OCTOBER , 1996)
$300,000,000
LOGO
% SUBORDINATED NOTES DUE NOVEMBER , 2006
------------------
The Subordinated Notes (the "Notes") will mature on November , 2006. Interest
on the Notes will be payable semi-annually in arrears on May and November of
each year, beginning May , 1997. The Notes will be unsecured and subordinated
as set forth under "Description of the Notes". The Notes will not be redeemable
prior to maturity without the written consent of the Board of Governors of the
Federal Reserve System (the "Board of Governors") and the Bank of England. The
Notes will not be subject to any sinking fund. Payment of principal of the Notes
may be accelerated only in the case of certain events of bankruptcy, insolvency
or reorganization of HSBC Americas, Inc. (the "Corporation") or receivership of
the Corporation's principal subsidiary, Marine Midland Bank (the "Bank"). There
is no right of acceleration upon a default in the payment of principal or
interest or in the performance of any covenant in the Notes or the Indenture
dated as of October 24, 1996, between the Corporation and Bankers Trust Company
(the "Indenture").
The Notes will be represented by global securities (the "Global Securities")
registered in the name of the nominee of the Depository Trust Company ("DTC").
Interest in the Global Securities will be shown on, and transfers thereof will
be effected only through, records maintained by DTC and its participants. Except
as provided herein, Notes in definitive form will not be issued. The Notes will
trade in DTC's Same-Day Funds Settlement System until maturity, and secondary
market trading activity for the Notes will therefore settle in immediately
available funds. All payments of principal and interest will be made by the
Corporation in immediately available funds. See "Description of the Notes"
herein and "Description of Debt Securities" in the accompanying Prospectus (the
"Prospectus").
------------------
THE NOTES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK
OR NONBANK SUBSIDIARY OF THE CORPORATION AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR ANY
OTHER GOVERNMENT AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT RELATES.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PRICE TO UNDERWRITING DISCOUNT PROCEEDS TO
PUBLIC(1) AND COMMISSIONS(2) CORPORATION(1)(3)
- --------------------------------------------------------------------------------
Per Note.... [ ] [ ] [ ]
- --------------------------------------------------------------------------------
Total....... [ ] [ ] [ ]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) Plus accrued interest, if any, from November , 1996.
(2) The Corporation has agreed to indemnify the Underwriters against certain
liabilities under the Securities Act of 1933. See "Underwriting."
(3) Before deducting expenses payable by the Corporation estimated at $[ ].
------------------
The Notes are offered by the several Underwriters, subject to prior sale, when,
as and if issued to and accepted by them, subject to certain conditions. The
Underwriters reserve the right to withdraw, cancel or modify such offer and to
reject orders in whole or in part. It is expected that delivery of the Notes in
book-entry form will be made through the facilities of DTC on or about November
, 1996. This Prospectus Supplement and the Prospectus may be used by HSBC
Securities, Inc., an affiliate of the Corporation, or other affiliates of the
Corporation in connection with offers and sales related to market-making
activities. HSBC Securities, Inc. or such affiliates may act as principal or
agent in any such transactions which will be made at negotiated prices related
to the prevailing market prices at the time of sale.
------------------
HSBC SECURITIES, INC. MERRILL LYNCH & CO.
J.P. MORGAN & CO. SMITH BARNEY INC.
THE DATE OF THIS PROSPECTUS SUPPLEMENT IS NOVEMBER , 1996.
<PAGE>
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES AT LEVELS
ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS
MAY BE EFFECTED IN THE OVER THE COUNTER MARKET OR OTHERWISE. SUCH STABILIZING,
IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
THE CORPORATION
HSBC Americas, Inc. (the "Corporation"), formerly Marine Midland Banks,
Inc., is a New York State-based bank holding company registered under the Bank
Holding Company Act of 1956, as amended. At September 30, 1996, the Corporation,
together with its subsidiaries, had assets of $22.2 billion, deposits of $17.2
billion and shareholders' equity of $1.9 billion.
The Corporation is an indirect wholly-owned subsidiary of HSBC Holdings plc
("HSBC"). HSBC, with assets of approximately $352 billion at December 31, 1995
and net income of approximately $3.9 billion for the year ended December 31,
1995, is one of the world's largest banking groups. HSBC, the ultimate parent
company of the Hongkong and Shanghai Banking Corporation Limited and Midland
Bank plc, is an international banking and financial services organization with
major commercial and investment banking franchises operating under long
established names in Asia, Europe, North America and the Middle East. The
principal executive offices of HSBC are located in London.
The Corporation's principal subsidiary, the Bank, which had assets of $22.0
billion and deposits of $18.4 billion at September 30, 1996, is supervised and
routinely examined by the Superintendent of Banks of the State of New York (the
"Superintendent of Banks") and the Board of Governors. The Bank is a regional
bank with 330 branches creating a distinctive geographic franchise which
encompasses the entire State of New York. The Bank has a presence in each of the
upstate New York markets, as well as in New York City. Selected banking
products, including credit cards and asset based lending, are offered on a
national basis. The Bank is engaged in a general commercial banking business,
offering a full range of banking products and services to individuals,
corporations, institutions and governments. Through its affiliation with HSBC,
the Bank offers its customers access to global markets and services. In turn,
the Bank plays a role in the delivery and processing of other HSBC products.
RECENT DEVELOPMENTS
On August 28, 1996, the Corporation announced that it had reached agreement
on August 21, 1996 with CT Financial Services Inc., a federal corporation
organized under the laws of Canada (the "Seller") to purchase from the Seller
all of the issued and outstanding common shares of CTUS Inc. ("CTUS"), a unitary
thrift holding company. CTUS owns approximately 99% of the issued and
outstanding shares of First Federal Savings and Loan Association of Rochester
("First Federal"), a thrift institution which, at June 30, 1996, had
approximately $7.2 billion in assets and approximately $4.4 billion in deposits
and operated 80 branches across New York State including 31 branches in Monroe
and Erie counties. The purchase price to be paid by the Corporation to the
Seller is $620 million in cash, subject to certain upward or downward
adjustments. It is contemplated that simultaneously with the purchase of the
common shares of CTUS by the Corporation, First Federal will be merged with and
into the Bank. The acquisition of CTUS is expected to expand the scope of the
Bank's operations to a wider retail customer base as well as its existing
mortgage origination network. After the closing of the purchase of the CTUS
common shares, the Seller will continue to hold certain securities of CTUS for
the sole purpose of providing to the Seller the amount of the net recovery, if
any, by First Federal (or the Bank as its successor) resulting from the pending
action in the United States Court of Claims by First Federal against the United
States government alleging breaches by the government of contractual
undertakings to First Federal following passage of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989.
2
<PAGE>
<PAGE>
Completion of the acquisition is subject to certain conditions, including
receipt of necessary regulatory approvals, including approval of the Board of
Governors and the Superintendent of Banks, as well as notification of the Office
of Thrift Supervision. The transaction, when completed, will be accounted for as
a purchase, and the results of CTUS's operations will be included in the
Corporation's financial statements from the date of acquisition.
On August 13, 1996, the Bank announced that it had entered into an
agreement to acquire the institutional United States dollar clearing activity of
Morgan Guaranty Trust Company of New York. This transaction is also subject to
regulatory approval. Additionally, prior to June 30, 1996, the Corporation
acquired two New York City branches of the Hang Seng Bank, an affiliate of the
Corporation, and selected assets and liabilities of East River Savings Bank.
USE OF PROCEEDS
The net proceeds to be received by the Corporation from the sale of the
Notes, estimated to be $ million after deducting offering expenses and
underwriting commissions, will be added to the general funds of the Corporation
and will be available for general corporate purposes, including the funding of
investments in or extensions of credit to subsidiaries. Pending such
application, the net proceeds will be invested in short-term investments
including deposits with subsidiary banks.
3
<PAGE>
<PAGE>
CAPITALIZATION
The following table sets forth the historical capitalization of the
Corporation as of September 30, 1996 and as adjusted to give effect to the
issuance of the Notes offered hereby.
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30, 1996
-------------------------
ACTUAL AS ADJUSTED
---------- -----------
($ IN THOUSANDS)
<S> <C> <C>
LONG TERM DEBT
8 5/8% Subordinated Capital Notes due 1997......... $ 125,000 $ 125,000
Floating Rate Subordinated Capital Notes
due 1999........................................... 100,000 100,000
Floating Rate Subordinated Notes due 2000.......... 200,000 200,000
Floating Rate Subordinated Notes due 2009.......... 124,320 124,320
Subordinated Notes due 2006 offered hereby......... 0 300,000
---------- ----------
549,320 849,320
Other notes payable................................ 216 216
Obligations under capital leases................... 33,613 33,613
---------- ----------
Total long term debt............................... 583,149 883,149
========== ==========
SHAREHOLDERS' EQUITY
$5.50 Cumulative Preferred Stock, 49,158
shares authorized, 22,154 shares outstanding..... 2,216 2,216
Adjustable Rate Cumulative Preferred Stock,
10,000,000 shares authorized, 1,916,950
shares outstanding............................... 95,847 95,847
Common Stock, $5 par value, 1,100 shares
authorized, 1,001 shares outstanding............. 5 5
Capital surplus.................................... 1,803,274 1,803,274
Retained earnings.................................. 37,926 37,926
Net unrealized gain on securities available
for sale, net of taxes........................... 3,389 3,389
---------- ----------
Total shareholders' equity......................... 1,942,657 1,942,657
---------- ----------
TOTAL CAPITALIZATION............................... $2,525,806 $2,825,806
========== ==========
</TABLE>
4
<PAGE>
<PAGE>
RECENT FINANCIAL RESULTS
The Corporation reported net income for the nine months ended September 30,
1996 of $276 million, up from $219 million for the comparable period in 1995.
Return on average common equity was 21.20% for the first nine months of the
year, compared to 17.37% for the same period in 1995, while return on average
assets was 1.78% compared to 1.56% during the same period last year.
Net interest income during the first nine months of 1996 was $706
million, which was $43 million above the level for the same period in 1995.
On a taxable equivalent basis, net interest income during the first
nine months of 1996 was $709 million, which was $43 million, or 6.4%, above
the level for the same period in 1995. Net yield on total assets on a taxable
equivalent basis was 4.58% during the first nine months of 1996, compared to
4.75% for the comparable period in 1995. The increase in net interest income was
attributable to higher average earning asset balances, which increased 11.4%
from the nine-month period ended September 30, 1995.
The provision for loan losses of $50 million was $108 million lower than in
the comparable period in 1995. Net charge-offs for the first nine months of 1996
were at a level of 0.7% of average outstanding loans, as compared to 1.2% a year
earlier.
Non-performing assets were $449 million at September 30, 1996, or 3.10% of
total loans and other real estate. This was a $129 million decrease from the
December 31, 1995 level, which was 4.16% of total loans and other real estate.
The allowance for loan losses was $441 million at September 30, 1996, or 98% of
non-performing assets.
Other operating income, excluding gains and losses, decreased by 1.2% to
$225 million in the first nine months of 1996, as compared to $228 million for
the same period in 1995.
Total assets on September 30, 1996 were $22.2 billion, an increase of $2.3
billion or 11.3% from September 30, 1995. The increase reflected growth in the
Bank's retail businesses, higher investment in money market assets and the
acquisitions of branches of the Hang Seng Bank and East River Savings Bank in
the first two quarters of 1996. See "Recent Developments."
Earning assets totaled $20.8 billion on September 30, 1996, an increase of
$2.4 billion, or 12.7%, over the total on September 30, 1995. Loans, the largest
category of earning assets, represented 69.5% of earning assets, as compared to
72.4% a year earlier. Total loans were $14.4 billion on September 30, 1996, an
increase of 8.1% as compared to September 30, 1995.
Funding sources, consisting of deposits and borrowed funds, increased by
$2.4 billion, or 14.4%, from September 30, 1995 to $19.3 billion on September
30, 1996. Total deposits were $17.2 billion, an increase of $2.4 billion, or
16.4%, over total deposits one year earlier.
Shareholders' equity totaled $1.9 billion at September 30, 1996, an
increase of $246 million and $111 million over shareholders' equity
at December 31, 1995 and September 30, 1995, respectively. Total
equity as a percent of total assets amounted to 8.77% at September 30,
1996. Under risk-based capital rules, Tier 1 and total capital ratios were
11.19% and 15.61%, respectively, of risk-adjusted assets at September 30, 1996.
The Corporation's leverage ratio as of September 30, 1996 was 8.54%.
5
<PAGE>
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth certain selected consolidated historical
financial information for the Corporation for each of the years in the five-year
period ended December 31, 1995 and for the nine-month periods ended September
30, 1995 and 1996. Such information has been derived from, should be read in
conjunction with, and is qualified in its entirety by, the consolidated
financial statements of the Corporation, including the notes thereto,
incorporated by reference in the Prospectus. The financial information for the
five years ended December 31, 1995 has been derived from the audited
consolidated financial statements of the Corporation. The unaudited financial
information for the nine-month periods ended September 30, 1995 and 1996 have
been derived from the unaudited consolidated financial statements of the
Corporation. In the opinion of management, such unaudited financial information
contains all adjustments (consisting only of normal recurring adjustments)
necessary for a fair presentation of such data. Results for the nine-month
periods ended September 30, 1995 and 1996 are not necessarily indicative of
results which may be expected for any other period or for the fiscal year as a
whole.
The Corporation's reported results have been restated to include the
results of Concord Leasing, Inc. ("Concord") and Oleifera Investments, Ltd.
("Oleifera"). Concord was merged with the Corporation on January 1, 1995, and
Oleifera was merged with the Corporation on January 1, 1996. Both Concord and
Oleifera were indirect wholly owned subsidiaries of HSBC prior to their
respective mergers with the Corporation, and each transaction was accounted for
as a transfer of assets between companies under common control. Concord and
Oleifera had tax loss carryforwards, but the transfers necessitated the
restatement of the Corporation's financial results to include the accounts and
results of operations of Concord and Oleifera as if the transactions had
occurred as of the beginning of the earliest period presented. This restatement
reduced the Corporation's net income by $266 million in 1994, $363 million in
1993 and $167 million in 1992, and increased net income by $16 million in 1991.
Prior to this restatement, the Corporation reported net income of $229 million,
$173 million and $109 million for the years ended December 31, 1994, 1993 and
1992, respectively, and a net loss of $190 million for the year ended December
31, 1991. The data in the following table has been restated to include the
accounts and results of operations of Concord and Oleifera.
6
<PAGE>
<PAGE>
HSBC AMERICAS, INC.
SELECTED CONSOLIDATED FINANCIAL DATA
($ IN MILLIONS)
NINE MONTHS
ENDED SEPTEMBER 30,
-------------------
1996 1995
------- -------
(UNAUDITED)
SUMMARY INCOME STATEMENT(A):
Net interest income.................... $ 706 $ 663
Provision for loan losses.............. 50 158
Other operating income................. 232 239
Other operating expense................ 488 512
------- -------
Income (loss) before taxes, the
cumulative effect of change in
accounting principle and
extraordinary item................... 400 232 )
Applicable income tax expense.......... 124 13
------- -------
Income (loss) before the cumulative
effect of change in accounting
principle and extraordinary item..... 276 219 )
Cumulative effect of change in
accounting principle and
extraordinary item (b)............... -- --
------- -------
Net income (loss) (a).................. $ 276 $ 219 )
======= =======
SELECTED PERIOD END BALANCES(A):
Total assets........................... $22,158 $19,909
Loans.................................. 14,426 13,341
Allowance for loan losses.............. 441 530
Deposits............................... 17,235 14,803
Long term debt......................... 583 710
Preferred shareholders' equity......... 98 98
Common shareholder's equity............ 1,845 1,734
Total shareholders' equity............. 1,943 1,832
SELECTED FINANCIAL RATIOS:
Return on average total assets......... 1.78% 1.56%%
Return on average common equity........ 21.20 17.37
Average total shareholders' equity to
average total assets................. 8.75 9.33
Allowance for loan losses as a % of
total loans at period end............ 3.06 3.97
Nonaccruing loans as a % of total
loans, at period end................. 2.65 4.39
Nonaccruing loans, other real estate
and other owned assets as a % of
total assets at period end........... 2.03 3.91
YEARS ENDED DECEMBER 31,
-------------------------------
1995 1994 1993
------- ------- -------
SUMMARY INCOME STATEMENT(A):
Net interest income.................... $ 892 $ 782 $ 727
Provision for loan losses.............. 175 169 108
Other operating income................. 315 296 117
Other operating expense................ 696 820 944
------- ------- -------
Income (loss) before taxes, the
cumulative effect of change in
accounting principle and
extraordinary item................... 336 89 (208)
Applicable income tax expense.......... 52 126 22
------- ------- -------
Income (loss) before the cumulative
effect of change in accounting
principle and extraordinary item..... 284 (37) (230)
Cumulative effect of change in
accounting principle and
extraordinary item (b)............... -- -- 40
------- ------- -------
Net income (loss) (a).................. $ 284 ($ 37) ($ 190)
======= ======= =======
SELECTED PERIOD END BALANCES(A):
Total assets........................... $20,553 $19,120 $20,323
Loans.................................. 13,772 13,134 12,521
Allowance for loan losses.............. 478 531 524
Deposits............................... 15,330 13,781 12,979
Long term debt......................... 710 713 1,704
Preferred shareholders' equity......... 98 98 98
Common shareholder's equity............ 1,599 1,559 1,602
Total shareholders' equity............. 1,697 1,657 1,700
SELECTED FINANCIAL RATIOS:
Return on average total assets......... % 1.50% -0.20% -0.99%
Return on average common equity........ 16.53 -2.72 -12.48
Average total shareholders' equity to
average total assets................. 9.37 9.00 8.68
Allowance for loan losses as a % of
total loans at period end............ 3.47 4.05 4.19
Nonaccruing loans as a % of total
loans, at period end................. 3.40 8.08 8.95
Nonaccruing loans, other real estate
and other owned assets as a % of
total assets at period end........... 2.81 6.34 6.74
YEARS ENDED DECEMBER 31,
--------------------
1992 1991
------- -------
SUMMARY INCOME STATEMENT(A):
Net interest income.................... $ 716 $ 747
Provision for loan losses.............. 289 345
Other operating income................. 421 389
Other operating expense................ 907 938
------- -------
Income (loss) before taxes, the
cumulative effect of change in
accounting principle and
extraordinary item................... (59) (147)
Applicable income tax expense.......... 29 27
------- -------
Income (loss) before the cumulative
effect of change in accounting
principle and extraordinary item..... (88) (174)
Cumulative effect of change in
accounting principle and
extraordinary item (b)............... 30 --
------- -------
Net income (loss) (a).................. ($ 58) ($ 174)
======= =======
SELECTED PERIOD END BALANCES(A):
Total assets........................... $19,251 $19,931
Loans.................................. 12,678 14,377
Allowance for loan losses.............. 701 727
Deposits............................... 13,104 13,568
Long term debt......................... 2,201 1,731
Preferred shareholders' equity......... 98 98
Common shareholder's equity............ 1,528 1,462
Total shareholders' equity............. 1,626 1,560
SELECTED FINANCIAL RATIOS:
Return on average total assets......... -0.31% -0.84%
Return on average common equity........ -4.33 -14.02
Average total shareholders' equity to
average total assets................. 8.34 6.72
Allowance for loan losses as a % of
total loans at period end............ 5.53 5.06
Nonaccruing loans as a % of total
loans, at period end................. 15.87 15.30
Nonaccruing loans, other real estate
and other owned assets as a % of
total assets at period end........... 12.43 11.98
[FN]
- ---------------
(a) The consolidated financial information for each of the years in the
five-year period ended December 31, 1995 and for the nine-month period ended
September 30, 1995 have been restated to include the results of Concord and
Oleifera. Prior to such restatement, the Corporation reported net income of
$229 million, $173 million and $109 million for the years ended December 31,
1994, 1993 and 1992, respectively, and a net loss of $190 million for the
year ended December 31, 1991.
(b) Includes the cumulative effect of a change in the method of accounting for
income taxes in 1993 and an extraordinary item relating to the utilization
of operating loss carryforwards in 1992.
7
<PAGE>
<PAGE>
DESCRIPTION OF THE NOTES
The following description of the particular terms of the Notes offered
hereby supplements, and to the extent inconsistent therewith replaces, the
description of the general terms and provisions of the Subordinated Securities
(as defined in the Prospectus) set forth in the Prospectus, to which description
reference is hereby made. Capitalized terms not otherwise defined herein have
the meanings set forth in the Prospectus.
GENERAL
The Notes will be obligations of the Corporation limited to $300,000,000
aggregate principal amount at maturity, will mature on November , 2006 (the
"Maturity Date") and will be issued under an Indenture (the "Indenture") dated
as of October 24, 1996, between the Corporation and Bankers Trust Company, as
trustee (the "Trustee"). The Indenture is more fully described in the
Prospectus.
The Notes will be direct and unsecured subordinated obligations of the
Corporation and will rank pari passu among themselves, without any preference
one over the other by reason of priority of date of issue or otherwise. The
Notes will also rank pari passu in right of payment with Indebtedness Ranking on
a Parity with the Debt Securities (as defined in the Indenture). There is no
Indebtedness Ranking on a Parity with the Debt Securities outstanding on the
date hereof in addition to the Indebtedness Ranking on a Parity with the Debt
Securities listed in the Prospectus. See "Description of Debt
Securities -- Subordinated Securities -- Subordination" in the Prospectus. The
rights of Holders of the Notes will, in the case of any bankruptcy, insolvency,
receivership, reorganization or similar proceedings in respect of the
Corporation or any liquidation or winding up of or relating to the Corporation
as a whole, whether voluntary or involuntary, be subordinated in right of
payment to all obligations of the Corporation to holders of Senior Indebtedness.
The aggregate amount of Senior Indebtedness (which does not include the Bank's
deposits) on September 30, 1996 was $2.1 billion. There are no limitations on
the issuance or incurrence by the Corporation of additional Senior Indebtedness.
INTEREST
Interest on the Notes will be payable from November , 1996 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually in arrears on May and November in each year
(each an "Interest Payment Date"), commencing May , 1997, at the rate of %
per annum, to the persons in whose names the Notes are registered at the close
of business on the fifteenth day next preceding such Interest Payment Date until
the principal thereof is paid or made available for payment.
The Notes will be sold in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof. The Notes are not redeemable prior to
maturity without the prior written consent of the Board of Governors and the
Bank of England. See "Description of Debt Securities -- Subordinated
Securities -- Redemption" in the Prospectus. The Notes will not be subject to
any sinking fund. Provisions of the Indenture relating to Defeasance will be
applicable to the Notes. Defeasance of the Corporation's obligations with
respect to the Notes is subject to the prior written approval of the Board of
Governors and the Bank of England. See "Description of Debt
Securities -- Defeasance and Covenant Defeasance" in the Prospectus.
If the Corporation does not pay any installment of interest on the Notes on
the applicable Interest Payment Date or all or any part of the principal thereof
on the Maturity Date, the obligation to make such payment and such Interest
Payment Date or Maturity Date, as the case may be, shall be deferred until (i)
in the case of a payment of interest, the date upon which a dividend is paid on
any class of share capital of the Corporation and (ii) in the case of a payment
of principal, the first Business Day after the date that falls six months after
the original Maturity Date. Each payment so deferred will accrue interest at the
rate per annum shown on the front cover of this Prospectus Supplement. Any
payment so deferred shall not be treated as due for any purpose. Any such
deferral shall take place only once with respect to any payment of interest or
principal.
8
<PAGE>
<PAGE>
SAME-DAY SETTLEMENT AND PAYMENT
Settlement for the Notes will be made in same-day funds and all payments of
principal and interest will be made by the Corporation in same-day funds. The
Notes will trade in the Same-Day Funds Settlement System of DTC until maturity,
and secondary market trading activity for the Notes will therefore settle in
immediately available funds.
BOOK-ENTRY SYSTEM
The Notes will be issued in the form of one or more fully registered Global
Securities. The Global Securities will be deposited with or on behalf of DTC and
registered in the name of DTC's nominee. Except as set forth below, the Global
Securities may be transferred, in whole and not in part, only by DTC to a
nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC
or any nominee to a successor depositary or any nominee of such depositary.
DTC has advised the Corporation that it is a limited-purpose trust company
organized under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended. DTC holds securities for
persons that have accounts with it ("Participants") and to facilitate the
clearance and settlement of securities transactions between Participants through
electronic book-entry changes in accounts of its Participants, thereby
eliminating the need for physical movement of certificates. Participants include
securities brokers and dealers, banks, trust companies and clearing corporations
and may include certain other organizations (including the Underwriters). DTC is
owned by a number of its Participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Indirect access to the DTC system also is available to others such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a Participant, either directly or indirectly
("Indirect Participants"). Beneficial owners of the Notes that are not
Participants or Indirect Participants but desire to purchase, sell or otherwise
transfer ownership of, or other interest in, the Notes may do so only through
Participants and Indirect Participants. The rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
DTC has advised that, pursuant to procedures established by it (i) upon
issuance of the Global Securities by the Corporation, DTC will credit the
accounts of the Participants designated by the Underwriters with the principal
amount of the Notes purchased by the Underwriters and (ii) ownership of
beneficial interests in the Global Securities will be shown on, and the transfer
of that ownership will be effected only through, records maintained by DTC (with
respect to Participants' interests), the Participants and the Indirect
Participants (with respect to owners of beneficial interests in such Global
Securities).
So long as DTC's nominee is the registered owner of the Global Securities,
such nominee will for all purposes be considered the sole owner of the Notes
represented by the Global Securities for all purposes under the Indenture. None
of the Corporation, the Trustee or the Security Registrar has any responsibility
or liability for the payment of principal or interest on the Notes to owners of
beneficial interests in the Global Securities. DTC has advised that upon receipt
of any payment of principal or interest in respect of the Global Securities, it
will immediately credit the accounts of the Participants with such payment in
amounts proportionate to their respective beneficial interests in such Global
Securities as shown on the records of DTC. Payments by Participants and Indirect
Participants to owners of beneficial interests in the Global Securities will be
governed by standing instructions and customary practices, and will be the
responsibility of the Participants or Indirect Participants.
The Corporation understands that under existing industry practices, if it
requests any action of Holders of Notes or if a beneficial owner of a Note
desires to give or take any action that a Holder is entitled to give or take
under the Indenture, DTC would authorize the Participants owning the relevant
Notes to give or take such action, and such Participants would authorize
Indirect Participants to give or take such action or would otherwise act upon
the instructions of owners holding through them.
A Global Security will be exchangeable for certificated Notes registered in
the names of persons other than DTC or its nominee only if (i) DTC notifies the
Corporation that it is unwilling or unable to continue as depository for such
Global Security or if at any time DTC ceases to be a clearing agency registered
under the Exchange Act at a time when DTC is required to be so registered in
order to act as such depository or (ii) the
9
<PAGE>
<PAGE>
Corporation executes and delivers to the Trustee a Company Order (as defined in
the Indenture) that such Global Security shall be so exchangeable.
A further description of DTC's procedures with respect to the Global
Securities is set forth in the Prospectus under "Description of Debt
Securities -- Global Securities."
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement
(the "Underwriting Agreement") among the Corporation and HSBC Securities, Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Smith Barney Inc. and J.P.
Morgan Securities Inc. (the "Underwriters"), the Corporation has agreed to sell
to the Underwriters, and the Underwriters have severally agreed to purchase,
the principal amount of Notes set forth after their names below. The
Underwriting Agreement provides that the obligations of the Underwriters are
subject to certain conditions precedent and that the Underwriters will be
obligated to purchase all of the Notes if any are purchased. In the event of
default by any Underwriter, the Underwriting Agreement provides that, in
certain circumstances, purchase commitments by nondefaulting Underwriters may
be increased or the Underwriting Agreement may be terminated.
UNDERWRITER PRINCIPAL AMOUNT
-------------------------------------------- ----------------
HSBC Securities, Inc........................ $
Merrill Lynch, Pierce, Fenner & Smith.......
Incorporated
J.P. Morgan Securities Inc..................
Smith Barney Inc............................
----------
Total..................................... $300,000,000
==========
The Underwriters have advised the Corporation that they propose initially
to offer the Notes to the public at the public offering price set forth on the
cover page of this Prospectus Supplement and to certain dealers at such price
less a concession not in excess of % of the principal amount of the Notes.
The Underwriters may allow, and such dealers may allow, a discount not in
excess of % of the principal amount of the Notes on sales to certain
other dealers. After the initial public offering, the public offering price,
concession and discount may be changed.
The Notes have no established trading market. The Corporation has been
advised by the Underwriters that the Underwriters intend to make a market in the
Notes, but they are not obligated to do so, and may discontinue market-making at
any time without notice. No assurance can be given as to the liquidity of the
trading market for the Notes.
The Underwriting Agreement provides that the Corporation will indemnify the
several Underwriters against certain liabilities, including liabilities under
the Securities Act of 1933, as amended, or contribute payments the Underwriters
may be required to make in respect of such liabilities.
Because HSBC Securities, Inc., an affiliate of the Corporation, is an
Underwriter, the offering of the Notes is being conducted in accordance with the
applicable provisions of Rules 2710 and 2720 of the Conduct Rules (the "Conduct
Rules") of the National Association of Securities Dealers, Inc. (the "NASD"). In
accordance with the Conduct Rules, no NASD member participating in the
distribution of the Notes is permitted to confirm sales to accounts over which
it exercises discretionary authority without prior specific written consent.
This Prospectus Supplement and the Prospectus may be used by HSBC
Securities, Inc. in connection with offers and sales related to market-making
activities. HSBC Securities, Inc. may act as principal or agent in any such
transactions. Such sales will be made at negotiated prices related to prevailing
market prices at the time of sale.
10
<PAGE>
<PAGE>
Certain of the Underwriters are customers of, or engage in transactions
with, and from time to time have performed services for, the Corporation or its
subsidiaries in the ordinary course of business.
LEGAL OPINIONS
The validity of the Notes offered hereby will be passed upon for the
Corporation by Cleary, Gottlieb, Steen & Hamilton, special counsel to the
Corporation and for the Underwriters by Brown & Wood LLP.
11
<PAGE>
<PAGE>
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR THE UNDERWRITERS. NEITHER
THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS NOR ANY SALE MADE
HEREUNDER AND THEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION SINCE THE DATE
HEREOF. THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN OFFER
OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS
NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
------------------
TABLE OF CONTENTS
PAGE
----
PROSPECTUS SUPPLEMENT
The Corporation........................ 2
Recent Developments.................... 2
Use of Proceeds........................ 3
Capitalization......................... 4
Recent Financial Results............... 5
Selected Consolidated Financial Data... 6
Description of the Notes............... 8
Underwriting........................... 10
Legal Opinions......................... 11
PROSPECTUS
Available Information.................. 2
Incorporation of Certain Documents by
Reference............................ 2
The Corporation........................ 3
Competition and Industry
Consolidation........................ 4
Consolidated Ratios of Earnings to
Fixed Charges and Combined Fixed
Charges and Preferred Stock Dividend
Requirements......................... 5
Supervision and Regulation............. 6
Use of Proceeds........................ 7
Description of Debt Securities......... 7
Description of Preferred Stock......... 16
Plan of Distribution................... 18
ERISA Matters.......................... 19
Legal Opinions......................... 20
Experts................................ 20
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
$300,000,000
LOGO
% SUBORDINATED NOTES
DUE NOVEMBER , 2006
------------------------------------
PROSPECTUS SUPPLEMENT
------------------------------------
HSBC SECURITIES, INC.
MERRILL LYNCH & CO.
J.P. MORGAN & CO.
SMITH BARNEY INC.
NOVEMBER , 1996
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE>
<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 24, 1996
REGISTRATION NO. 333-5801
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------
HSBC AMERICAS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-1093160
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
------------------
ONE MARINE MIDLAND CENTER
BUFFALO, NEW YORK 14203
(716) 841-2424
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------
PHILIP S. TOOHEY, ESQ. JAMES F. MUNSELL, ESQ.
GENERAL COUNSEL AND SECRETARY CLEARY, GOTTLIEB, STEEN & HAMILTON
HSBC AMERICAS, INC. ONE LIBERTY PLAZA
ONE MARINE MIDLAND CENTER NEW YORK, NEW YORK 10006
BUFFALO, NEW YORK 14203 (212) 225-2000
(716) 841-2473
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
------------------
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration number of the earlier effective registration
statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
================================================================================
<PAGE>
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH JURISDICTION.
SUBJECT TO COMPLETION -- DATED OCTOBER 24, 1996
PROSPECTUS
[LOGO]
HSBC AMERICAS, INC.
Member HSBC Group
------------------
DEBT SECURITIES
PREFERRED STOCK
HSBC Americas, Inc. (the "Corporation") intends to issue from time to time
in one or more series up to $500,000,000 in aggregate initial offering price of
(i) debt securities, which may be either senior (the "Senior Securities") or
subordinated (the "Subordinated Securities"; and collectively with the Senior
Securities, the "Debt Securities") and (ii) shares of preferred stock (the
"Preferred Stock"). The Debt Securities and Preferred Stock offered hereby
(collectively, the "Securities") may be offered, separately or as units with
other Securities, in separate series in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in an accompanying supplement
to this Prospectus (a "Prospectus Supplement").
------------------
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Corporation. The Subordinated Securities will be
subordinate to all existing and future Senior Indebtedness of the Corporation
(as defined herein). The maturity of the Subordinated Securities will be subject
to acceleration only in the event of certain events of bankruptcy, insolvency or
reorganization of the Corporation or receivership of the Corporation's principal
subsidiary, Marine Midland Bank (the "Bank").
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in a Prospectus Supplement, together with the
terms of the offering of the Securities and the initial price and net proceeds
to the Corporation from the sale thereof. The Prospectus Supplement will include
the following information with respect to the Securities, where applicable: (i)
in the case of Debt Securities, the specific designation, aggregate principal
amount, ranking, denomination, maturity, priority, rate of interest (which may
be variable or fixed), time of payment of interest, terms for optional
redemption or repayment by the Corporation or any holder, the initial public
offering price, any stock exchange listings, any special provisions related to
Debt Securities issued as medium-term notes, original issue discount securities
or other special terms and the designation of the Trustee, Security Registrar
and Paying Agent, (ii) in the case of Preferred Stock, the specific title and
stated value, number of shares or fractional interests therein, terms of any
dividend, liquidation, redemption, voting and other rights, any stock exchange
listings, and the initial public offering price and (iii) in the case of all
Securities, whether such Securities are being offered separately or as a unit
with other Securities. The Prospectus Supplement will also contain information,
where applicable, about certain United States federal income tax considerations
relating to the Securities covered by the Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES WILL BE UNSECURED OBLIGATIONS OF THE CORPORATION AND WILL NOT BE
SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK
SUBSIDIARY OF THE CORPORATION AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION (THE "FDIC"), BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
------------------
The Securities may be sold by the Corporation directly to purchasers,
through agents designated from time to time, through underwriting syndicates led
by one or more managing underwriters or through one or more underwriters. The
Corporation expects that any such agents, managing underwriters or underwriters
in the United States may include HSBC Securities, Inc. or other affiliates of
the Corporation. If underwriters or agents are involved in any offering of the
Securities, the names of the underwriters or agents will be set forth in the
applicable Prospectus Supplement. If an underwriter, agent or dealer is involved
in any offering of the Securities, the underwriter's discount, agent's
commission or dealer's purchase price will be set forth in, or may be calculated
from the information set forth in, the applicable Prospectus Supplement, and the
net proceeds to the Corporation from such offering will be the public offering
price of such Securities less such discount in the case of an offering though an
underwriter or such commission in the case of an offering through an agent, and
less, in each case, the other expenses of the Corporation associated with the
issuance and distribution of such Securities.
The Corporation or one or more of its subsidiaries may from time to time
purchase or acquire a position in the Securities and may at its option, hold,
resell, cancel or exercise, if applicable, such Securities. HSBC Securities,
Inc. expects to offer and sell previously issued Securities in the course of its
business as a broker-dealer and may act as principal or agent in such
<PAGE>
transactions. In addition, this Prospectus may be used by HSBC Securities, Inc.
or other affiliates of the Corporation in connection with offers and sales
related to market-making activities. HSBC Securities, Inc. or such affiliates
may act as principal or agent in any such transactions which will be made at
negotiated prices related to the prevailing market prices at the time of sale.
This Prospectus may not be used to consummate sales of the Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is October , 1996.
<PAGE>
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR THE PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR ANY UNDERWRITER OR
AGENT. THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AT ANY TIME
DOES NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE OF SUCH INFORMATION. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES IN
ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION.
UNLESS OTHERWISE INDICATED, CURRENCY AMOUNTS IN THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT ARE STATED IN U.S. DOLLARS ("$," "DOLLARS," "U.S.
DOLLARS," OR "U.S. $").
AVAILABLE INFORMATION
The Corporation is subject to the information reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports and other information filed
by the Corporation can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's regional offices at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and 7
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained upon written request to the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 at
prescribed rates. The Commission maintains a Web site at http://www.sec.gov
containing reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission, including
the Corporation. Certain securities of the Corporation are listed on the New
York Stock Exchange ("NYSE"), and such reports and other information concerning
the Corporation also may be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Corporation has filed with the Commission a registration statement on
Form S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the Securities. This Prospectus does not contain
all the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement and to the exhibits thereto. Statements contained herein
concerning the provisions of certain documents are not necessarily complete, and
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents and information heretofore filed with the Commission pursuant to
Sections 12 or 13 of the Exchange Act:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995 (the "1995 10-K").
2. The Corporation's Report on Form 10-Q for the quarter ended March
31, 1996.
3. The Corporation's Report on Form 10-Q for the quarter ended June
30, 1996.
4. The Corporation's Report on Form 8-K dated June 5, 1996 (the "June
5th 8-K").
2
<PAGE>
<PAGE>
5. The Corporation's Report on Form 8-K dated August 29, 1996.
6. The Corporation's Report on Form 8-K dated August 30, 1996.
7. The Corporation's Report on Form 8-K dated October 22, 1996 (the
"October 22nd 8-K").
8. The description of the Corporation's Preferred Stock contained in
the Corporation's registration statements filed under Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Corporation pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of the Securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of filing
of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in the accompanying Prospectus Supplement, or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
THE CORPORATION WILL PROVIDE UPON REQUEST AND WITHOUT CHARGE TO EACH PERSON
TO WHOM THIS PROSPECTUS IS DELIVERED A COPY OF ANY OR ALL OF THE FOREGOING
DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED THEREIN BY REFERENCE). WRITTEN
REQUESTS SHOULD BE DIRECTED TO MANAGER, TREASURY TRANSACTIONS, HSBC AMERICAS,
INC., ONE MARINE MIDLAND CENTER, 21ST FLOOR, BUFFALO, NEW YORK 14203. TELEPHONE
REQUESTS MAY BE DIRECTED TO MANAGER, TREASURY TRANSACTIONS AT (716) 841-2577.
THE CORPORATION
HSBC Americas, Inc. (the "Corporation"), formerly Marine Midland Banks,
Inc., is a New York State-based bank holding company registered under the Bank
Holding Company Act of 1956, as amended. At September 30, 1996, the Corporation,
together with its subsidiaries, had assets of $22.2 billion, deposits of $17.2
billion and shareholders' equity of $1.9 billion.
The Corporation is an indirect wholly-owned subsidiary of HSBC Holdings plc
("HSBC"). HSBC, with assets of approximately $352 billion at December 31, 1995
and net income of approximately $3.9 billion for the year ended December 31,
1995, is one of the world's largest banking groups. HSBC, the ultimate parent
company of The Hongkong and Shanghai Banking Corporation Limited and Midland
Bank plc, is an international banking and financial services organization with
major commercial and investment banking franchises operating under long
established names in Asia, Europe, North America and the Middle East. The
principal executive offices of HSBC are located in London.
The Corporation's principal subsidiary, the Bank, which had assets of $22.0
billion and deposits of $18.4 billion at September 30, 1996, is supervised and
routinely examined by the Superintendent of Banks of the State of New York and
the Board of Governors of the Federal Reserve System (the "Board of Governors").
The Bank is a regional bank with 330 branches creating a distinctive geographic
franchise which encompasses the entire State of New York. Selected banking
products, including credit cards and asset based lending, are offered on a
national basis. The Bank is engaged in a general commercial banking business,
offering a full range of banking products and services to individuals,
corporations, institutions and governments. Through its affiliation with HSBC,
the Bank offers its customers access to global markets and services. In turn,
the Bank plays a role in the delivery and processing of other HSBC products.
3
<PAGE>
<PAGE>
The Corporation's reported results are consolidated with Concord Leasing,
Inc. ("Concord") and Oleifera Investments, Ltd. ("Oleifera"). Concord, which
provides equipment financing through secured loan and finance lease
transactions, had assets of $1.5 billion at December 31, 1994. Concord was
merged with the Corporation on January 1, 1995 through the contribution of
Concord's outstanding common stock held by HSBC Holdings, B.V., an indirect
wholly owned subsidiary of HSBC, to the Corporation. The merger transaction was
accounted for as a transfer of assets between companies under common control,
with the assets and liabilities of Concord combined with those of the
Corporation at their historical carrying values. Oleifera had assets of $183
million at December 31, 1995. The assets of Oleifera were transferred to the
Corporation on January 1, 1996 through a transaction involving the contribution
of common stock held by HSBC Holdings, B.V. to the Corporation. The transaction
was accounted for as a transfer of assets between companies under common
control. The Corporation's consolidated financial statements set forth in the
June 5th 8-K reflect a restatement of all prior periods to include the accounts
and results of operations of Oleifera as if the transaction had occurred as of
the beginning of the earliest period presented.
On August 13, 1996, the Bank announced that it had entered into an
agreement to acquire the institutional United States dollar clearing activity of
Morgan Guaranty Trust Company of New York. On August 21, 1996, the Corporation
entered into an agreement with CT Financial Services Inc. for the purchase of
all of the outstanding shares of CTUS Inc., the parent company of First Federal
Savings and Loan Association of Rochester.
A more complete description of these pending acquisitions, including pro
forma and other financial information relating thereto, is set out in the
October 22nd 8-K.
COMPETITION AND INDUSTRY CONSOLIDATION
The Corporation and its subsidiaries face competition in all of the markets
they serve, competing with other major financial institutions, including
commercial banks, investment banks, savings and loan associations, credit
unions, consumer finance companies, money market funds and other non-banking
institutions, such as insurance companies, major retailers, brokerage firms, and
investment companies in New York, throughout the United States, and
internationally. One of the principal methods of competing effectively in the
financial services industry is to improve customer service through the quality
and range of services available, easing access to facilities and pricing. One
outgrowth of this competitive environment has been a significant number of
consolidations in the banking industry both on a national and regional level,
partially in response to changes in the regulatory framework governing banks'
interstate activities. See "Supervision and Regulation". The Corporation engages
on an ongoing basis in reviewing and discussing possible acquisitions of
financial institutions, as well as banking and other assets in order to expand
its business. The Corporation intends to continue to explore acquisition
opportunities as they arise in order to take advantage of the continuing
consolidation in the banking industry.
4
<PAGE>
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The Corporation's ratios of earnings to fixed charges and earnings to
combined fixed charges and preferred stock dividend requirements are set forth
below for the periods indicated, including restatement on a historic basis to
include the accounts and results of operations of Concord and Oleifera, which
were merged with the Corporation on January 1, 1995 and 1996, respectively (see
"The Corporation"):
SIX MONTHS
ENDED
------------------
6/30/96 6/30/95
------- -------
Earnings to Fixed Charges:
Excluding Interest on Deposits...... 3.82 2.57
Including Interest on Deposits...... 1.80 1.40
Earnings to Combined Fixed Charges and
Preferred Stock Dividend
Requirements
Excluding Interest on Deposits...... 3.66 2.47
Including Interest on Deposits...... 1.78 1.38
YEARS ENDED DECEMBER 31,
------------------------------------
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
Earnings to Fixed Charges:
Excluding Interest on Deposits...... 3.35 1.48 0.00 0.73 0.55
Including Interest on Deposits...... 1.55 1.17 0.58 0.90 0.85
Earnings to Combined Fixed Charges and
Preferred Stock Dividend
Requirements
Excluding Interest on Deposits...... 3.19 1.43 0.00 0.71 0.54
Including Interest on Deposits...... 1.53 1.16 0.57 0.89 0.84
Fixed charges exceeded earnings by $212 million in 1993, $62 million in
1992, and $152 million in 1991. Fixed charges and Preferred Stock dividends
exceeded earnings by $218 million in 1993, $68 million in 1992, and $159 million
in 1991.
Management also believes that it is informative to view the coverage of
fixed charges for 1994 and prior years without such restatement since the
Concord and Oleifera mergers took place in 1995 and 1996. Without such
restatement, the Corporation's ratios of earnings to fixed charges and earnings
to combined fixed charges and preferred stock dividends were as follows:
YEARS ENDED DECEMBER 31,
--------------------------------
1994 1993 1992 1991
---- ---- ---- -----
Earnings to Fixed Charges:
Excluding Interest on Deposits......... 4.33 2.30 2.25 -0.13
Including Interest on Deposits......... 1.83 1.36 1.24 0.78
Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements:
Excluding Interest on Deposits......... 3.98 2.17 2.05 -0.12
Including Interest on Deposits......... 1.80 1.34 1.21 0.78
Fixed charges exceeded earnings by $183 million in 1991. Fixed charges and
preferred stock dividends exceeded earnings by $190 million in 1991.
For purposes of computing both the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividend requirements,
earnings represent net income (loss) before extraordinary items and cumulative
effect of changes in accounting principles plus applicable income taxes and
fixed charges. Fixed charges, excluding interest on deposits, include interest
expense (other than on deposits) and the proportion deemed representative of the
interest factor of rent expense, net of income from subleases. Fixed charges,
including interest on deposits, include all interest expense and the proportion
deemed representative of the interest factor of rent expense, net of income from
subleases. Pretax earnings required for preferred stock dividends were computed
using tax rates for the applicable year. No tax adjustments were made in loss
years.
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SUPERVISION AND REGULATION
Banks and bank holding companies are extensively regulated under both
federal and state law. Activities in which the Corporation and its subsidiaries
are presently engaged or which they may undertake in the future are subject to
certain statutory and regulatory restrictions.
The Corporation is subject to the supervision of, and to regular inspection
by, the Board of Governors. The Bank is subject to banking laws and regulations
which, among other things, require that reserves be maintained against deposits
and currently limit the establishment of branch banking offices in the U.S.
outside its home state. There are also various legal limitations upon the extent
to which the Bank can finance or otherwise supply funds to the Corporation or
certain of its affiliates and certain regulatory limitations on the payment of
dividends to the Corporation by the Bank. The Corporation is also prohibited,
with certain exceptions, from engaging, directly or indirectly, in activities
which are not closely related to banking. In addition, the Federal Reserve Act
restricts certain transactions between banks and their nonbank affiliates. Many
of the Corporation's competitors are not subject to the same laws and
regulations imposed on the Corporation and its subsidiaries.
The Riegel-Neal Interstate Banking and Branching Efficiency Act of 1994
("IBBEA") authorized interstate acquisitions of banks and bank holding companies
without geographic limitation beginning in 1995. In addition, beginning in 1997,
a bank may merge with a bank in another state as long as neither of the states
opts out of interstate branching. Also, IBBEA protects key provisions of state
law, establishes a mechanism for de novo interstate branching and includes
provisions relating to interstate branching by foreign banks. The enactment of
banking legislation such as the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 ("FIRREA") and the Federal Deposit Insurance Corporation
Improvement Act of 1991 ("FDICIA") have affected the banking industry by, among
other things, broadening the regulatory powers of federal banking agencies.
Under FIRREA, the failure to meet capital guidelines could subject a financial
institution to a variety of regulatory actions, including the termination of
deposit insurance by the FDIC. Among other things, FDICIA set standards for:
addressing the safety and soundness of the deposit insurance system, supervision
of domestic and foreign depositary institutions, accounting, prompt regulatory
action and federal deposit insurance. Pursuant to FDICIA, a well capitalized
institution must have a Tier 1 risk-based capital ratio of at least 6%, a total
risk-based capital ratio of at least 10%, a leverage ratio of at least 5% and
not be subject to a capital directive order. The leverage ratio measures Tier 1
capital (essentially common equity, excluding net unrealized gain (loss) on
securities available for sale and goodwill, plus certain types of perpetual
preferred stock) against total non-risk weighted assets. The Bank's ratios at
June 30, 1996 exceeded the ratios required for the well capitalized category.
In connection with establishing standards to assure the safety and
soundness of financial institutions as required by FDICIA, the Federal Reserve
Board issued guidelines on operations, management and compensation. The Federal
Reserve Board has also proposed standards for asset quality and earnings. The
Corporation does not expect the guidelines and proposed regulations to have a
material effect on its operations.
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USE OF PROCEEDS
The Corporation intends to use the net proceeds from the sale of the
Securities for general corporate purposes, which may include one or more of the
following: investments in and advances to the Corporation's subsidiaries,
including the Bank; financing future acquisitions of financial institutions, as
well as banking and other assets; and the redemption of certain of the
Corporation's outstanding securities. The precise amounts and timing of the
application of proceeds used for such corporate purposes will depend upon
funding requirements and the availability of other funds to the Corporation and
its subsidiaries.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The following sets forth certain general terms and provisions of the Debt
Securities to which any Prospectus Supplement may relate. The particular terms
of any Debt Securities and the extent, if any, to which such general provisions
may apply to such Debt Securities will be described in the Prospectus Supplement
relating to such Debt Securities.
The Senior Securities offered hereby are to be issued under an Indenture,
dated as of October 24, 1996 between the Corporation and Bankers Trust Company,
("Bankers Trust" or the "Trustee"), as Trustee (the "Senior Indenture") and the
Subordinated Securities offered hereby are to be issued under an Indenture,
dated as of October 24, 1996, between the Corporation and Bankers Trust, as
Trustee (the "Subordinated Indenture" and collectively with the Senior
Indenture, the "Indentures"). Copies of the Indentures are filed as exhibits to
the Registration Statement. The following summaries of certain provisions of the
Indentures do not purport to be complete and such summaries are qualified in
their entirety by reference to all of the provisions of the Indentures,
including the definitions therein of certain terms. Whenever particular
sections, articles or defined terms of the Indentures are referred to, such
provisions or definitions are incorporated herein by reference.
Because the Corporation is a holding company, its rights and the rights of
its creditors, including the Holders of the Debt Securities, to participate in
the assets of any subsidiary, including the Bank, upon the subsidiary's
liquidation or reorganization or otherwise would be subject to the prior claims
of the subsidiary's creditors, except to the extent that the Corporation may
itself be a creditor with recognized claims against the subsidiary.
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder. Debt Securities may be issued
thereunder in series up to the aggregate principal amount which may be
authorized from time to time by the Corporation (Section 301). The Debt
Securities will be unsecured obligations of the Corporation (Section 113). The
Senior Securities will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Corporation. The Subordinated Securities will
be subordinate in right of payment as described below under "Subordination."
The Debt Securities may be issued in one or more separate series of Senior
Securities and/or one or more separate series of Subordinated Securities.
Reference is made to the Prospectus Supplement relating to the particular series
of Debt Securities offered thereby for the terms of such Debt Securities,
including, where applicable (Section 301):
(1) the title of such Debt Securities (which shall distinguish such
Debt Securities from all other series of Debt Securities), which may
include medium-term notes;
(2) the limit, if any, on the aggregate principal amount or aggregate
initial offering price of the Debt Securities;
(3) the dates on which or periods during which such Debt Securities
will be issued, and the dates on, or the range of dates within, which the
principal of (and premium, if any, on) such Debt Securities will be
payable;
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(4) the rate or rates at which the Debt Securities will bear interest,
if any, which rate may be zero in the case of certain Debt Securities
issued at an issue price representing a discount from the principal amount
payable at maturity, or the method by which such rate or rates will be
determined, and the date or dates from which such interest, if any, will
accrue;
(5) the date or dates on which such interest, if any, on the Debt
Securities will be payable and the regular record date, if any, for such
Interest Payment Dates or the method by which such date or dates will be
determined;
(6) the place or places where (i) the principal of and premium, if
any, and any interest on the Debt Securities will be payable, (ii) Debt
Securities may be surrendered for registration of transfer, (iii) Debt
Securities may be surrendered for exchange, and (iv) notices to or upon the
Corporation in respect of the Debt Securities of the series and any
Indenture may be served;
(7) the period or periods within which, the price or prices at which,
the Debt Securities may, pursuant to any redemption provision, be redeemed,
in whole or in part, and the other detailed terms and provisions of any
such redemption provisions;
(8) if other than denominations of $1,000 and any integral multiples
thereof, the denominations in which any Debt Securities will be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount, the portion of the principal
amount (or the method by which such portion will be determined) of Debt
Securities that will be payable upon declaration of acceleration of the
Maturity thereof;
(11) any index, formula or other method (including a method based on
changes in the prices of particular securities, currencies, intangibles,
goods, articles or commodities) used to determine the amount of payments of
principal of and premium, if any, and interest, if any, on the Debt
Securities;
(12) whether such Debt Securities are Senior Securities or
Subordinated Securities, or include both;
(13) whether provisions relating to defeasance and covenant defeasance
will be applicable to such series of Debt Securities;
(14) any provisions granting special rights to Holders of Debt
Securities upon the occurrence of specified events;
(15) any modifications, deletions or additions to the Events of
Default or covenants of the Corporation with respect to the Debt
Securities;
(16) whether any Debt Securities are issuable initially in temporary
or permanent global form and, if so (i) whether (and the circumstances
under which) beneficial owners of interests in permanent global Debt
Securities may exchange their interests for Debt Securities of like tenor
of any authorized form and denomination, and (ii) the identity of any
initial depositary for such global Debt Securities;
(17) the date as of which any temporary global Debt Security will be
dated if other than the original issuance date of the first Debt Security
of that series to be issued;
(18) the Person to whom any interest on any registered Debt Securities
will be payable, if other than the Registered Holder, and the extent to
which and manner that any interest payable on a temporary global Debt
Security will be paid if other than as specified in the Indentures;
(19) the form and/or terms of certificates, documents or conditions,
if any, for Debt Securities to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Debt Security of such
Series); and
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(20) any other terms, conditions, rights and preferences (or
limitations on such rights or preferences) relating to the Debt Securities
(which terms shall not be inconsistent with the provisions of the
applicable Indenture and the Trust Indenture Act).
If the amount of payments of principal of and premium, if any, or any
interest on Debt Securities is determined with reference to any type of index or
formula or changes in prices of particular securities, currencies, intangibles,
goods, articles or commodities, the Federal income tax consequences, specific
terms and other information with respect to such Debt Securities and such index
or formula, securities, currencies, intangibles, goods, articles or commodities
will be described in the Prospectus Supplement relating thereto.
Debt Securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate that at the time of
issuance is below market rates ("Discount Securities"). Federal income tax
consequences and other special considerations applicable to any such Debt
Securities will be described in the Prospectus Supplement relating thereto.
REGISTRATION AND TRANSFER
Unless otherwise provided in the Prospectus Supplement, each series of Debt
Securities will be issued only in registered form ("Registered Securities")
(Section 302). Marine Midland Bank will serve as the initial Securities
Registrar. Unless otherwise provided in the Prospectus Supplement, Registered
Securities may be presented for transfer (duly endorsed or accompanied by a
written instrument of transfer, if so required by the Corporation or the
Security Registrar) or exchanged for other Debt Securities of the same series at
the Corporate Trust Office of the Trustee in New York City. Such transfer or
exchange shall be made without service charge, but the Corporation may require
payment of any tax or other governmental charge as described in the applicable
Indenture (Sections 301, 305, 1202).
Unless otherwise indicated in the Prospectus Supplement, Registered
Securities, other than Registered Securities issued in global form which may be
of any denomination, will be issued without coupons and in denominations of
$1,000 or integral multiples thereof (Section 302).
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depositary or common depositary (the "Common
Depositary") identified in the applicable Prospectus Supplement. Global
Securities may only be issued in registered form and in either temporary or
permanent form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security may not be
transferred except as a whole by the Common Depositary for such Global Security
to its nominee or another nominee or by a nominee to the Common Depositary or
another nominee or by the Common Depositary or any nominee to a successor Common
Depositary or any nominee of such successor (Sections 303, 305).
Principal and interest payments on the Global Securities registered in the
name of the Common Depositary or its nominee will be made to the Common
Depositary or its nominee, as the case may be, as the registered owner of such
Global Securities. Under the terms of the Indentures, the Corporation and the
Paying Agents will treat the persons in whose names the Global Securities are
registered as the owners of such Global Securities for the purpose of receiving
payment of principal and interest on such Global Securities and for all other
purposes whatsoever. Therefore, neither the Corporation nor the Paying Agents
has any direct responsibility or liability for the payment of principal of or
interest on the Global Securities to owners of beneficial interests in the
Global Securities.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the Prospectus Supplement, payment of
principal of and premium, if any, and interest, if any, on the Securities will
be made at the corporate trust office of the Trustee in New York City or at the
corporate offices of Marine Midland Bank in New York City, except that, at the
option of the
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Corporation, interest may be paid by mailing a check to the address of the
person entitled thereto as such address appears in the Security Register.
(Sections 301, 307, 1202).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under each Indenture, the Corporation, without the consent of the Holders
of any of the Debt Securities outstanding under the applicable Indenture, may
consolidate with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to any Person
provided that: (i) the successor is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the successor corporation expressly assumes, by an indenture supplemental
to the applicable Indenture, the Corporation's obligation for the due and
punctual payment of the principal of and premium, if any, and interest, if any,
on all of the Debt Securities under the applicable Indenture and the performance
of every covenant of the applicable Indenture; (iii) after giving effect to the
transaction, no Event of Default under the Senior Indenture and no Default under
the Subordinated Indenture, and no event which, after notice or lapse of time,
or both, would become an Event of Default or a Default, as the case may be,
shall have happened and be continuing; and (iv) certain other conditions are met
(Section 1001).
MODIFICATION AND WAIVER
Each Indenture provides that modification or amendments of the Indentures
may be made by the Corporation and the Trustee, with the consent of the Holders
of 66 2/3 percent in principal amount of the outstanding Debt Securities of each
series affected by such modification or amendment; provided, however, that no
such modification or amendment may, without the consent of the Holder of each
outstanding Debt Security affected thereby: (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest on, any Debt
Security; (b) reduce the principal amount of, or rate or amount of interest, if
any, on, or any premium payable upon the redemption of any Debt Security; (c)
reduce the amount of principal of any Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof or the amount
provable in bankruptcy; (e) adversely affect any right of repayment at the
option of any Holder of any Debt Security; (f) change the place or currency of
payment of principal of, or any premium or interest on, any Debt Security; (g)
impair the right to institute suit for the enforcement of any payment on or with
respect to any Debt Security on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date); (h) reduce the percentage of principal
amount of outstanding Debt Securities of any series, the consent of whose
Holders is required for modification or amendment of the Indentures, or for
waiver of compliance with certain provisions of the Indentures or for waiver of
certain defaults and their consequences, or reduce the requirements for quorum
or voting by the Holders; or (i) modify certain provisions of the Indentures
except to increase the percentage of Holders required to consent thereon to
amendment or modification thereof or to provide that certain other Indenture
provisions cannot be modified or waived without the consent of the Holder of
each outstanding Debt Security affected thereby (Section 1102).
The Holders of 66 2/3 percent in principal amount of the outstanding Debt
Securities of each series may, on behalf of all Holders of Debt Securities of
that series, waive, insofar as that series is concerned, compliance by the
Corporation with certain terms, conditions, or provisions of the Indentures
(Section 1205). The Holders of not less than a majority in principal amount of
the outstanding Debt Securities of any series may, on behalf of all Holders of
Debt Securities of that series, waive any past default under the applicable
Indentures with respect to Debt Securities of that series and its consequences,
except a default in the payment of principal or premium, if any, or interest, if
any, or in respect of a covenant or provision which under Article XI of each
Indenture cannot be modified or amended without the consent of the Holder of
each outstanding Debt Security of such series affected (Section 513).
Each Indenture provides that, in determining whether the Holders of the
requisite principal amount of the outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or are present at a meeting of Holders for quorum purposes, and for making
calculations required under Section 313 of the Trust Indenture Act: (a) the
principal amount of a Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be outstanding shall
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be the amount of principal thereof that would be due and payable as of the time
of such determination upon acceleration of the Maturity thereof; and (b) the
principal amount of any indexed Debt Security that may be counted in making such
determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such indexed Debt
Security at original issuance, unless otherwise provided with respect to such
Debt Security (Section 101).
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that the Corporation may elect (a) to defease and be
discharged from its obligations with respect to any Debt Securities of or within
a series (except the obligations to register the transfer of or exchange such
Debt Securities; to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities; to maintain an office or agency in respect of such Debt
Securities; and to hold moneys for payment in trust) ("defeasance") or (b) with
respect to the Senior Indenture, to be released from its obligations with
respect to such Debt Securities under Section 1001 of the Senior Indenture or,
if provided pursuant to Section 301 of the applicable Indenture, its obligations
with respect to any other covenant, and any omission to comply with such
obligations shall not constitute a default or an Event of Default under the
Senior Indenture with respect to such Debt Securities ("covenant defeasance"),
in either case by (a) depositing irrevocably with the Trustee as trust funds in
trust (i) money in an amount, or (ii) U.S. Government Obligations (as defined
below) in an amount which through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later than one
business day before the due date of any payment, money in an amount, or (iii) a
combination of dollars in cash and U.S. Government Obligations sufficient to pay
the principal of and premium, if any, and interest, if any, on the Debt
Securities of such series on the dates such installments of interest or
principal and premium and any similar payments applicable to such Debt
Securities are due and (b) satisfying certain other conditions precedent
specified in the Indentures. Such deposit and termination is conditioned among
other things upon the Corporation's delivery of an Opinion of Counsel that the
Holders of the Debt Securities of such series will have no U.S. federal income
tax consequences as a result of such deposit and termination and an Officer's
Certificate that all conditions precedent to the defeasance have been met
(Article XIV).
Defeasance of the Corporation's obligations with respect to Subordinated
Securities is subject to the prior written approval of the Board of Governors
and the Bank of England (Subordinated Indenture, Section 1402).
If the Corporation exercises its covenant defeasance option with respect to
any series of Senior Securities and such Senior Securities are declared due and
payable because of the occurrence of any Event of Default other than with
respect to a covenant as to which there has been covenant defeasance as
described above, the money and U.S. Government Obligations on deposit with the
Trustee will be sufficient to pay amounts due on such Senior Securities at their
Stated Maturity but may not be sufficient to pay amounts due on such Senior
Securities at the time of acceleration relating to such Event of Default.
However, the Corporation would remain liable to make payment of such amounts due
at the time of acceleration.
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within any particular series.
Unless otherwise specified in the Prospectus Supplement, "U.S. Government
Obligations" means securities that are (i) direct obligations of the United
States government or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States government, the
timely payment of which is unconditionally guaranteed by such government, which,
in either case, are full faith and credit obligations of such government payable
in dollars and are not callable or redeemable at the option of the issuer
thereof, and also includes a depositary receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depositary
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
depositary receipt from any amount received by the
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custodian in respect of the U.S. Government Obligation or the specific payment
of interest or principal of the U.S. Government Obligation evidenced by such
depositary receipt (Section 1402).
REGARDING THE TRUSTEE
Bankers Trust, the Trustee under the Indentures, has its principal
corporate trust office at 4 Albany Street, 4th Floor, New York, New York 10006.
The Corporation and its banking subsidiaries maintain banking relationships with
the Trustee.
SENIOR SECURITIES
The Senior Securities will be direct unsecured obligations of the
Corporation and will constitute Senior Indebtedness (as defined below under
"Subordinated Securities -- Subordination") ranking on a parity with the other
Senior Indebtedness of the Corporation.
EVENTS OF DEFAULT
The following will be Events of Default under the Senior Indenture with
respect to Senior Securities of any series: (a) failure to pay principal or
premium, if any, on any Senior Security of that series at Maturity; (b) failure
to pay any interest on any Senior Security of that series when due and payable,
continued for 30 days; (c) failure to perform any covenant or warranty of the
Corporation in the Senior Indenture (other than a covenant or warranty included
in the Senior Indenture solely for the benefit of series of Senior Securities
other than that series), continued for 60 days after written notice as provided
in the Senior Indenture; (d) default under any bond, debenture, note, mortgage,
indenture, other instrument or other evidence of Indebtedness for Money Borrowed
in an aggregate principal amount exceeding $5 million by the Corporation or the
Bank or its successors (including a default with respect to Senior Securities of
another series) under the terms of the instrument or instruments by or under
which such indebtedness is evidenced, issued or secured, which default results
in the acceleration of such indebtedness, if such acceleration is not rescinded
or annulled, or such indebtedness is not discharged, within ten days after
written notice as provided in the Senior Indenture; (e) certain events in
bankruptcy, insolvency or reorganization of the Corporation or receivership
of the Bank and (f) any other Event of Default provided with respect to Senior
Securities of that series (Senior Indenture, Section 501).
If an Event of Default with respect to Senior Securities of any series at
the time outstanding occurs and is continuing, either the Trustee or the Holders
of at least 25 percent in aggregate principal amount of the outstanding Senior
Securities of that series may declare the principal amount (or, if the
Securities of that series are Discount Securities or Indexed Securities, such
portion of the principal amount of such Senior Securities as may be specified in
the terms thereof) of and all accrued but unpaid interest on all the Senior
Securities of that series to be due and payable immediately, by a written notice
to the Corporation (and to the Trustee, if given by Holders), and upon any such
declaration such principal amount (or specified amount) and interest shall
become immediately due and payable. At any time after a declaration of
acceleration with respect to Senior Securities of any series has been made, but
before a judgment or decree for payment of the money due has been obtained, the
Holders of a majority in principal amount of outstanding Senior Securities of
that series may, under certain circumstances, rescind and annul such declaration
and its consequences, if all Events of Default have been cured, or if permitted,
waived, and all payments due (other than those due as a result of acceleration)
have been made or provided for (Senior Indenture, Section 502).
The Senior Indenture provides that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Senior
Indenture at the request or direction of any of the Holders of Senior Securities
of any series, unless such Holders shall have offered to the Trustee reasonable
indemnity or security against the costs, expenses and liabilities which may be
incurred (Senior Indenture, Sections 601, 603). Subject to certain provisions,
the Holders of a majority in principal amount of the Outstanding Senior
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
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exercising any trust or power conferred on the Trustee, with respect to the
Senior Securities of that series (Senior Indenture, Section 512).
The Corporation is required to deliver to the Trustee annually an Officers'
Certificate as to its performance and observance of any of the terms, provisions
and conditions with respect to certain provisions in the Senior Indenture and as
to the absence of any default (Senior Indenture, Section 1206).
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Corporation. The obligations of the Corporation pursuant to the Subordinated
Securities will be subordinate in right of payment to all Senior Indebtedness as
defined below under "Subordination."
The maturity of the Subordinated Securities will be subject to acceleration
only in the event of certain events of bankruptcy, insolvency or reorganization
of the Corporation or the receivership of the Bank. See "Events of Default;
Defaults" below.
SUBORDINATION
The obligation of the Corporation to make any payment on account of the
principal of or premium, if any, and interest, if any, on the Subordinated
Securities will be subordinate and junior in right of payment to the
Corporation's obligations to the holders of Senior Indebtedness of the
Corporation to the extent described in the next paragraph. (Subordinated
Indenture, Section 1501). "Senior Indebtedness" of the Corporation is defined in
the Subordinated Indenture to mean Indebtedness for Money Borrowed of the
Corporation, whether outstanding on the date of execution of the Subordinated
Indenture or thereafter created, assumed or incurred, except Indebtedness
Ranking on a Parity with the Debt Securities and any deferrals, renewals or
extensions of such Senior Indebtedness (Subordinated Indenture, Section 101).
"Indebtedness for Money Borrowed" of the Corporation is defined in the
Subordinated Indenture as (a) any obligation of, or any obligation guaranteed
by, the Corporation for the repayment of borrowed money, whether or not
evidenced by bonds, debentures, notes or other written instruments, (b) similar
obligations arising from off-balance sheet guarantees and direct credit
substitutes, (c) obligations associated with derivative products, such as
interest-rate and foreign-exchange-rate contracts, commodity contracts and
similar arrangements, and (d) any deferred obligations for the payment of the
purchase price of property or assets (Subordinated Indenture, Section 101).
"Indebtedness Ranking on a Parity with the Debt Securities" is defined in the
Subordinated Indenture to mean Indebtedness for Money Borrowed of the
Corporation, whether outstanding on the date of execution of the Subordinated
Indenture or thereafter created, assumed or incurred, which specifically by its
terms ranks equally with and not prior to the Subordinated Securities in the
right of payment upon the happening of any event of the kind specified in the
next paragraph. Indebtedness Ranking on a Parity with the Debt Securities
includes the Corporation's:
(i) 8 5/8% Subordinated Capital Notes due March 1997 issued under an
indenture dated March 1, 1987 between the Corporation and The Chase
Manhattan Bank (formerly known as Chemical Bank), as trustee;
(ii) Floating Rate Subordinated Capital Notes due March 1999 issued
under an indenture dated as of April 1, 1987 between the Corporation and
The Chase Manhattan Bank (formerly known as Chemical Bank), as trustee;
(iii) Floating Rate Subordinated Notes due December 2000 issued under
an indenture dated December 12, 1985 between the Corporation and The Chase
Manhattan Bank (formerly known as The Chase Manhattan Bank, National
Association), as trustee;
(iv) Floating Rate Subordinated Notes due December 2009 issued under
an indenture dated December 15, 1984 between the Corporation and The Chase
Manhattan Bank (formerly known as The Chase Manhattan Bank, National
Association), as trustee.
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In the case of any bankruptcy, insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshaling of assets and liabilities or
similar proceedings or any liquidation or winding up of or relating to the
Corporation as a whole, whether voluntary or involuntary, all obligations of the
Corporation to Holders of Senior Indebtedness of the Corporation shall be
entitled to be paid in full before any payment shall be made on account of the
principal of, or premium, if any, or interest, if any, on the Subordinated
Securities of any series. In the event and during the continuation of any
default in the payment of principal of, or premium, if any, or interest, if any,
on, any Senior Indebtedness beyond any applicable grace period, or in the event
that any event of default with respect to any Senior Indebtedness shall have
occurred and be continuing, or would occur as a result of certain payments,
permitting the holders of such Senior Indebtedness (or a trustee on behalf of
the holders thereof) to accelerate the maturity thereof, then, unless and until
such default or event of default shall have been cured or waived or shall have
ceased to exist, no payment of principal of, or premium, if any, or interest, if
any, on the Subordinated Securities, or in respect of any redemption, exchange,
retirement, purchase or other acquisition of any of the Subordinated Securities,
shall be made by the Corporation (Subordinated Indenture, Sections 1501, 1503).
Any Prospectus Supplement relating to an issuance of Subordinated
Securities will set forth (as of the most recent practicable date) the aggregate
amount of outstanding Senior Indebtedness and any limitation on the issuance of
additional Senior Indebtedness.
Holders of Subordinated Securities, by their acceptance of such
Subordinated Securities, shall be deemed to have irrevocably waived any rights
such Holders may have to counterclaim or set off amounts owed by such Holders to
the Corporation against amounts owed to such Holders by the Corporation under
the Subordinated Indenture or to institute proceedings in respect of such
amounts (Subordinated Indenture, Section 1501).
By reason of such subordination in favor of the holders of Senior
Indebtedness of the Corporation, in the event of the insolvency of the
Corporation, holders of Senior Indebtedness of the Corporation may receive more,
ratably, and Holders of the Subordinated Securities having a claim pursuant to
the Subordinated Securities may receive less, ratably, than the other creditors
of the Corporation.
REDEMPTION
No redemption, defeasance or early repayment of amounts owed under the
Subordinated Securities, including purchases of capital notes by the Corporation
or its subsidiaries or at the option of Holders of Subordinated Securities, may
be made without the prior written consent of the Board of Governors and the Bank
of England. Such consent by the Bank of England and the Board of Governors will
depend on the Bank of England and the Board of Governors being satisfied that
the Corporation's capital is adequate and is likely to remain so (Subordinated
Indenture, Section 1302).
EVENTS OF DEFAULT; DEFAULTS
The only Events of Default under the Subordinated Indenture with respect to
Subordinated Securities of any series will be certain events in bankruptcy,
insolvency or reorganization of the Corporation or the receivership of the Bank
(Subordinated Indenture, Section 501).
If an Event of Default with respect to Subordinated Securities of any
series at the time Outstanding occurs and is continuing, the Trustee or the
Holders of at least 25 percent in principal amount of the Outstanding
Subordinated Securities of that series may declare the principal amount (or, if
any of the Subordinated Securities of that series are Discount Securities or
Indexed Securities, such portion of the principal amount of such Subordinated
Securities as may be specified in the terms thereof) of and all accrued but
unpaid interest on all the Subordinated Securities of that series to be due and
payable immediately, by a written notice to the Corporation (and to the Trustee,
if given by Holders), and upon any such declaration such principal amount (or
specified amount) and interest shall become immediately due and payable
(Subordinated Indenture, Section 502). The foregoing provision would, in the
event of the bankruptcy or insolvency of the Corporation, be subject as to
enforcement to the broad equity powers of a Federal bankruptcy court and to the
determination by that court of the nature and status of the payment claims of
the
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Holders of the Subordinated Securities. At any time after a declaration of
acceleration with respect to the Subordinated Securities of any series has been
made, but before a judgment or decree for payment of the money due has been
obtained, the Holders of a majority in principal amount of Outstanding
Subordinated Securities of that series may, under certain circumstances, rescind
and annul such acceleration but only if all Defaults have been remedied, or if
permitted, waived and if certain other conditions have been satisfied
(Subordinated Indenture, Sections 502, 513).
The following events will be Defaults under the Subordinated Indenture with
respect to Subordinated Securities of any series: (a) an Event of Default with
respect to such series of Subordinated Securities; (b) failure to pay principal
or premium, if any, on any Subordinated Security of that series at Maturity,
continued for seven days; and (c) failure to pay any interest, if any, on any
Subordinated Security of that series when due and payable, continued for 30 days
(Subordinated Indenture, Section 503).
If the Corporation does not pay any installment of interest on the
applicable Interest Payment Date or all or any part of principal on the
Maturity, the obligation to make such payment and such Interest Payment Date or
Maturity, as the case may be, shall be deferred until (i) in the case of a
payment of interest, the date upon which a dividend is paid on any class of
share capital of the Corporation and (ii) in the case of a payment of principal,
the first Business Day after the date that falls six months after the original
Maturity. Failure by the Corporation to make any such payment prior to such
deferred Interest Payment Date or Maturity shall not constitute a default by the
Corporation or otherwise allow any holder to sue the Corporation for such
payment or to take any other action. Each payment so deferred will accrue
interest at the rate per annum shown on the front cover of the applicable
Prospectus Supplement. Any payment so deferred shall not be treated as due for
any purpose (including, without limitation, for the purposes of ascertaining
whether or not a Default has occurred until the deferred Interest Payment Date
or Maturity, as the case may be). Any such deferral shall take place only once
with respect to any payment of interest or principal.
The maturity of the Subordinated Securities will be subject to acceleration
only in the event of certain events of bankruptcy, insolvency or reorganization
of the Corporation or the receivership of the Bank. There will be no right of
acceleration of the payment of principal of the Subordinated Securities of such
series upon a default in the payment of principal of or premium, if any, or
interest, if any, or a default in the performance of any covenant or agreement
in the Subordinated Securities or the Subordinated Indenture or any Default
other than an Event of Default. If a Default with respect to the Subordinated
Securities of any series occurs and is continuing, the Trustee may, subject to
certain limitations and conditions, seek to enforce its rights and the rights of
the Holders of Subordinated Securities of such series or the performance of any
covenant or agreement in the Subordinated Indenture (Subordinated Indenture,
Section 503).
The Subordinated Indenture provides that, subject to the duty of the
Trustee upon the occurrence of a Default to act with the required standard of
care, the Trustee will be under no obligation to exercise any of its rights or
powers under the Subordinated Indenture at the request or direction of any of
the Holders of Subordinated Securities of any series unless such Holders shall
have offered to the Trustee reasonable indemnity or security against the costs,
expenses and liabilities which may be incurred. (Subordinated Indenture,
Sections 601, 603). Subject to certain provisions, the Holders of a majority in
principal amount of the Outstanding Subordinated Securities of any series will
have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee, with respect to the Subordinated Securities of
that series (Subordinated Indenture, Section 507).
The Corporation is required to furnish to the Trustee annually an Officer's
Certificate as to the performance and observance by the Corporation of certain
of the terms, provisions and conditions under the Subordinated Indenture and as
to the absence of default (Subordinated Indenture, Section 1204).
REPLACEMENT DEBT SECURITIES
Unless otherwise provided for in the applicable Prospectus Supplement, if a
Debt Security of any series is mutilated, destroyed, lost or stolen, it may be
replaced at the corporate trust office of the Trustee in the City
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and State of New York upon payment by the Holder of such expenses as may be
incurred by the Corporation and the Trustee in connection therewith and the
furnishing of such evidence and indemnity as the Corporation and such Trustee
may require. Mutilated Debt Securities must be surrendered before new Debt
Securities will be issued (Section 306).
NOTICES
Unless otherwise provided in the applicable Prospectus Supplement, any
notice required to be given to a Holder of a Debt Security of any series that is
a Registered Security will be mailed to the last address of such Holder set
forth in the applicable Security Register, and any notice so mailed shall be
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice (Section 105).
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of certain general terms of
the Corporation's Preferred Stock to which any Prospectus Supplement may relate.
Certain terms of any series of the Preferred Stock offered by any Prospectus
Supplement will be described in the Prospectus Supplement relating thereto. If
so indicated in the Prospectus Supplement, the terms of any series may differ
from the terms set forth below. The description of certain provisions of the
Preferred Stock does not purport to be complete and is subject to and qualified
in its entirety by reference to the provisions of the Corporation's Restated
Certificate of Incorporation (the "Certificate"), and the Certificate of
Designations Establishing a Series of a Class of Stock (the "Designations")
relating to each particular series of the Preferred Stock, which will be filed
with the Commission at or prior to the time of the sale of such Preferred Stock.
GENERAL
Under the Corporation's Certificate, the Board of Directors of the
Corporation is authorized, without further stockholder action, to provide for
the issuance of up to 49,158 shares of preferred stock, without par value and up
to 10,000,000 shares of preferred stock, par value $1.00 per share, in one or
more series, with such designations or titles; dividend rates; special or
relative rights in the event of liquidation, distribution or sale of assets or
dissolution or winding up of the Corporation; any redemption or purchase account
provisions; any conversion provisions; and any voting rights thereof, as shall
be set forth as and when established by the Board of Directors of the
Corporation. The shares of any series of Preferred Stock will be, when issued,
fully paid and non-assessable and holders thereof shall have no preemptive
rights in connection therewith.
As of the date hereof, the Corporation has outstanding 1,916,950 shares of
Adjustable Rate Cumulative Preferred Stock and 22,154 shares of $5.50 Cumulative
Preferred Stock. The Adjustable Rate Cumulative Preferred Stock has a
liquidation preference of $50 per share. The dividend rate is determined
quarterly and is based on a formula which considers certain short- and long-term
interest rates. The dividend rate per annum for any dividend period will not be
less than 6% nor greater than 12%. This stock is redeemable at the option of the
Corporation at any time at a redemption price of $50 per share. The $5.50
Cumulative Preferred Stock has a stated value and a liquidation value of $100
per share and is redeemable at the election of the Corporation at any time at a
redemption price of $100 per share.
The liquidation preference of any series of the Preferred Stock is not
necessarily indicative of the price at which shares of such series of Preferred
Stock will actually trade at or after the time of their issuance. The market
price of any series of Preferred Stock can be expected to fluctuate with changes
in market and economic conditions, the financial condition and prospects of the
Corporation and other factors that generally influence the market prices of
securities.
RANK
Any series of the Preferred Stock will, with respect to dividend rights and
rights on liquidation, winding up and dissolution, rank (i) senior to all
classes of common stock of the Corporation and with all equity securities issued
by the Corporation, the terms of which specifically provide that such equity
securities will
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rank junior to the Preferred Stock (collectively referred to as the "Junior
Securities"); (ii) on a parity with all equity securities issued by the
Corporation, the terms of which specifically provide that such equity securities
will rank on a parity with the Preferred Stock, (collectively referred to as the
"Parity Securities"); and (iii) junior to all equity securities issued by the
Corporation, the terms of which specifically provide that such equity securities
will rank senior to the Preferred Stock (collectively referred to as the "Senior
Securities"). As used in any Designation for these purposes, the term "equity
securities" will not include debt securities convertible into or exchangeable
for equity securities.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of the Corporation, out of
funds legally available therefor, cash dividends at such rates and on such dates
as are set forth in the Prospectus Supplement relating to such series of the
Preferred Stock. Dividends will be payable to holders of record of the Preferred
Stock as they appear on the books of the Corporation on such record dates, as
shall be fixed by the Board of Directors. Dividends on any series of Preferred
Stock may be cumulative or non-cumulative.
No full dividends may be declared or paid or funds set apart for the
payment of dividends on any Parity Securities unless dividends shall have been
paid or set apart for such payment on the Preferred Stock. If full dividends are
not so paid, the Preferred Stock shall share dividends pro rata with the Parity
Securities. If dividends are cumulative, any accumulated unpaid dividends will
not bear interest.
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Corporation or the holder thereof upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors of the
Corporation or by any other method determined to be equitable by the Board of
Directors.
On and after a redemption date, unless the Corporation defaults in the
payment of the redemption price, dividends will cease to accrue on shares of
Preferred Stock called for redemption and all rights of holders of such shares
will terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies may not redeem shares of
preferred stock which constitute Tier 1 capital for purposes of the Board of
Governors' risk-based capital requirements without the prior approval of the
Board of Governors. Ordinarily, the Board of Governors would permit such a
redemption if (1) the shares are redeemed with the proceeds of a sale by the
bank holding company of common stock or perpetual preferred stock or (2) the
Board of Governors determines that a bank holding company's capital position
after such redemption would clearly be adequate and that its condition and
circumstances warrant the reduction of a source of permanent capital.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, holders of each series of Preferred Stock that ranks senior to
the Junior Securities will be entitled to receive out of assets of the
Corporation available for distribution to stockholders, before any distribution
is made on any Junior Securities, including Common Stock, distributions upon
liquidation in the amount set forth in the Prospectus Supplement relating to
such series of Preferred Stock, plus an amount equal to any accrued and unpaid
dividends. If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the amounts payable with respect to the Preferred
Stock of any series and any other Parity Securities are not paid in full, the
holders of the Preferred Stock of such series and the Parity Securities will
share ratably in any such distribution of assets of the Corporation in
proportion to the full liquidation preferences to which each is entitled. After
payment of the full amount of the liquidation preference to which they are
entitled, the holders
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of such series of Preferred Stock will not be entitled to any further
participation in any distribution of assets of the Corporation. However, neither
(i) the merger or consolidation of the Corporation with or into one or more
corporations pursuant to any statute which provides in effect that the
stockholders of the Corporation shall continue as stockholders of the continuing
or combined corporation nor (ii) the acquisition by the Corporation of assets or
stock of another corporation shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by
applicable law, the holders of the Preferred Stock will have no voting rights.
Under regulations adopted by the Board of Governors, if the holders of
shares of any series of Preferred Stock of the Corporation became entitled to
vote for the election of directors, such series may then be deemed a "class of
voting securities" and a holder of 25% or more of such series (or a holder of 5%
if it otherwise exercises a "controlling influence" over the Corporation) may
then be subject to regulation as a bank holding company in accordance with the
Bank Holding Company Act of 1956, as amended. In addition, at such time as such
series is deemed a class of voting securities, (i) any other bank holding
company may be required to obtain the approval of the Board of Governors to
acquire or retain 5% or more of such series, and (ii) any person other than a
bank holding company may be required to obtain the approval of the Board of
Governors under the Change in Bank Control Act to acquire or retain 10% or more
of such series.
PLAN OF DISTRIBUTION
The Corporation may sell Securities to one or more underwriters for public
offering and sale by them or may sell Securities to investors directly or
through agents which solicit to receive offers on behalf of the Corporation or
through dealers or through a combination of any such methods of sale. The
applicable Prospectus Supplement will set forth the terms of the offering of any
Securities, including the names of the underwriters, the purchase price of such
Securities and the proceeds to the Corporation from such sale, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering price, any discounts or concessions allowed or reallowed or paid
to dealers, and any securities exchanges on which such Securities may be listed.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. Such Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Unless otherwise set forth in the applicable Prospectus
Supplement, the obligations of the underwriters to purchase such Securities will
be subject to certain conditions precedent, and the underwriters will be
obligated to purchase all of such Securities if any of such Securities are
purchased.
The Corporation may, from time to time, authorize agents acting on a best
efforts basis as agents of the Corporation to solicit or receive offers to
purchase the Securities upon the terms and conditions as are set forth in the
applicable Prospectus Supplement. In connection with the sale of Securities,
underwriters or agents may be deemed to have received compensation from the
Corporation in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of Securities for whom they may act as
agents. Underwriters may sell Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agent. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Underwriters, dealers and agents participating in a distribution of the
Securities (including agents only soliciting or receiving offers to purchase
Securities on behalf of the Corporation) may be deemed to be underwriters, and
any discounts and commissions received by them and any profit realized by them
on resale
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of the Securities may be deemed to be underwriting discounts and commissions,
under the Securities Act. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Corporation, to indemnification against
and contribution toward certain civil liabilities, including liabilities under
the Securities Act. The Corporation may agree to reimburse underwriters or
agents for certain expenses incurred in connection with the distribution of the
Securities.
If so indicated in the applicable Prospectus Supplement, the Corporation
will authorize agents or dealers acting as the Corporation's agents to solicit
offers by certain institutions to purchase Securities from the Corporation at
the public offering price set forth in such Prospectus Supplement pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery on
the date or dates stated in such Prospectus Supplement. Each Contract will be
for an amount not less than, and the aggregate principal amount of Securities
sold pursuant to Contracts shall be not less nor more than, the respective
amounts stated in such Prospectus Supplement. Institutions with whom Contracts,
when authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions, and other institutions but will in all cases be subject to the
approval of the Corporation. Contracts will not be subject to any conditions
except (i) the purchase by an institution of the Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject, and (ii)
if the Securities are being sold to underwriters, the Corporation shall have
sold to such underwriters the total principal amount of the Securities less the
principal amount thereof covered by Contracts.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, by one or more firms
("remarketing firms") acting as principals for their own accounts or as agents
for the Corporation. Any remarketing firm will be identified and the terms of
its agreement, if any, with the Corporation and its compensation will be
described in the Prospectus Supplement. Remarketing firms may be deemed to be
underwriters in connection with the Securities remarketed thereby.
Certain of the underwriters, dealers or agents and their associates may be
customers of, engage in transactions with, and perform services for, the
Corporation in the ordinary course of business.
HSBC Securities, Inc., an affiliate of the Corporation, may be a managing
underwriter, underwriter, market-maker or agent in connection with any offer or
sale of the Securities. Each offering of the Securities will be conducted in
compliance with any applicable requirements of Rule 2720 of the Conduct Rules of
the National Association of Securities Dealers, Inc. regarding the underwriting
by HSBC Securities, Inc. of the securities of an affiliate. In addition, this
Prospectus may be used by HSBC Securities, Inc. in connection with offers and
sales related to market-making activities. HSBC Securities, Inc. may act as
principal or agent in any such transactions. Such sales will be made at
negotiated prices related to the prevailing market prices at the time of sale.
ERISA MATTERS
The Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
imposes certain restrictions on employee benefit plans ("Plans") that are
subject to ERISA and on persons who are fiduciaries with respect to such Plans.
In accordance with ERISA's general fiduciary requirements, a fiduciary with
respect to any such Plan who is considering the purchase of the Securities on
behalf of such Plan should determine whether such purchase is permitted under
the governing Plan documents and is prudent and appropriate for the Plan in view
of its overall investment policy and the composition and diversification of its
portfolio. Other provisions of ERISA and Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), prohibit certain transactions involving
the assets of a Plan and persons who have certain specified relationships to the
Plan ("parties in interest" within the meaning of ERISA or "disqualified
persons" within the meaning of Section 4975 of the Code). Thus, a Plan fiduciary
considering the purchase of the Securities should consider whether such a
purchase might constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code.
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The Corporation, directly or through its affiliates, may be considered a
"party in interest" or a "disqualified person" with respect to many Plans that
are subject to ERISA. The purchase of Securities by a Plan that is subject to
the fiduciary responsibility provisions of ERISA or the prohibited transaction
provisions of Section 4975 of the Code (including individual retirement accounts
and other plans described in Section 4975(e)(1) of the Code) and with respect to
which the Corporation is a party in interest or a disqualified person may
constitute or result in a prohibited transaction under ERISA or Section 4975 of
the Code, unless such Securities are acquired pursuant to and in accordance with
an applicable exemption, such as Prohibited Transaction Class Exemption ("PTCE")
84-14 (an exemption for certain transactions determined by an independent
qualified professional asset manager), PTCE 91-38 (an exemption for certain
transactions involving bank collective investment funds), PTCE 90-1 (an
exemption for certain transactions involving insurance company pooled separate
accounts), PTCE 95-60 (an exemption for certain transactions involving insurance
company general accounts), or PTCE 96-23 (an exemption for certain transactions
determined by an in-house asset manager). ANY PENSION OR OTHER EMPLOYEE BENEFIT
PLAN PROPOSING TO ACQUIRE ANY SECURITIES SHOULD CONSULT WITH ITS COUNSEL.
Certain of the underwriters and their associates may be customers of,
engage in transactions with, and perform services for, the Corporation in the
ordinary course of business.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for the
Corporation by Cleary, Gottlieb, Steen & Hamilton, special counsel to the
Corporation, and for the Underwriters by Brown & Wood LLP.
EXPERTS
The consolidated financial statements of the Corporation as of December 31,
1994 and 1995 and for each of the years in the three-year period ended December
31, 1995 and the consolidated balance sheet of Marine Midland Bank as of
December 31, 1994 and 1995 contained in the Corporation's 1995 Form 10-K and the
supplemental consolidated financial statements as of December 31, 1994 and 1995
and for each of the years in the three-year period ended December 31, 1995 and
the consolidated balance sheet of Marine Midland Bank as of December 31, 1994
and 1995 contained in the June 5th 8-K have been incorporated herein by
reference in reliance upon the reports, set forth therein of KPMG Peat Marwick
LLP, independent accountants, and upon the authority of said firm as experts in
accounting and auditing. Such reports referred to the Corporation's changes in
accounting for income taxes and post-retirement benefits other than pensions in
1993, certain investments in debt and equity securities in 1994 and loan
impairment in 1995.
The consolidated financial statements of CTUS, Inc. as of December 31, 1994
and 1995 and for the years then ended contained in the October 22nd 8-K have
been incorporated herein by reference in reliance upon the report of KPMG Peat
Marwick LLP, independent accountants, and upon the authority of said firm as
experts in accounting and auditing. Such report referred to CTUS Inc.'s changes
in accounting for certain investments in debt and equity securities in 1994 and
loan impairment in 1995.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
securities being registered other than underwriting compensation are as follows:
SEC registration fee....................... $172,414
Rating agency fees......................... 150,000
Printing and engraving expenses............ 30,000
Accountants' fees and expenses............. 60,000
Trustees' fees and expenses................ 10,000
Blue sky fees and expenses................. 1,650
NASD fee................................... 30,500
Legal fees and expenses.................... 200,000
Miscellaneous.............................. 10,000
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Total.................................... $664,564
========
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All the above amounts except the SEC registration fee and the NASD fee are
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended, provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any such
person serving in any such capacity who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation and except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent that the Delaware
Court of Chancery or such other court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnify for such expenses which the Court of Chancery
or such other court shall deem proper.
The registrant has entered into indemnification agreements with each of its
directors and officers indemnifying them against expenses, settlements,
judgments and fines incurred in connection with any threatened, pending or
completed action, suit, arbitration or proceeding, where the individual's
involvement is by reason of the fact that such person is or was a director or
officer or served at the Company's request as a director of another organization
(except that indemnification is not provided against judgments and fines in a
derivative suit unless permitted under Delaware law). An individual may not be
indemnified if such person is found not to have acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the registrant, except to the extent Delaware law permits broader
contractual indemnification. These indemnification agreements provide
procedures, presumptions and remedies which
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substantially strengthen the indemnification rights beyond those provided by the
registrant's Certificate of Incorporation (the "Certificate") and by Delaware
law.
The Certificate provides that each person who was or is made a party to, or
is involved in, any action, suit, proceeding or claim by reason of the fact that
he or she is or was a director, officer or employee of the registrant (or is or
was serving at the request of the registrant as a director, officer, trustee,
employee or agent of any other enterprise including service with respect to
employee benefit plans) shall be indemnified and held harmless by the
registrant, to the full extent permitted by Delaware law, as in effect from time
to time, against all expenses (including attorneys' fees and expenses),
judgments, fines, penalties and amounts to be paid in settlement incurred by
such person in connection with the investigation, preparation to defend or
defense of such action, suit, proceeding or claim.
The rights to indemnification and the payment of expenses provided by the
Certificate do not apply to any action, suit, proceeding or claim initiated by
or on behalf of a person otherwise entitled to the benefit of such provisions.
Any person seeking indemnification under the Certificate shall be deemed to have
met the standard of conduct required for such indemnification unless the
contrary shall be established. Any repeal or modification of such
indemnification provisions shall not adversely affect any right or protection of
a director or officer with respect to any conduct of such director or officer
occurring prior to such repeal or modification.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to include in its certificate of incorporation a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under section 174 of the Delaware General Corporation Law (relating to
unlawful payment of dividend and unlawful stock purchase and redemption) or (iv)
for any transaction from which the director derived an improper personal
benefit. The registrant has provided in the Certificate that its directors shall
be exculpated from liability as provided under Delaware law.
The Corporation maintains insurance policies covering liabilities of
directors and officers to the extent not covered by indemnification from the
Corporation, subject to the conditions and exclusions of the policies,
deductible provisions, a maximum amount of coverage of L100 million and disputes
with insurers about availability of coverage.
For the undertaking with respect to indemnification, see Item 17 herein.
See the Form of proposed Underwriting Agreement filed as Exhibit 1(a) for
certain indemnification provisions.
II-2
<PAGE>
<PAGE>
ITEM 16. EXHIBITS.
(1) (a) -- Form of Underwriting Agreement relating to the Debt Securities.**
(4) (a) -- Restated Certificate of Incorporation of the Corporation, as
amended through June 12, 1996, incorporated herein by reference
to Exhibit 3(a) to the Corporation's Annual Report on Form 10-K
for the year ended December 31, 1995 (File No. 1-2940).*
(4) (b) -- By-Laws of the Corporation, as amended through June 12, 1996,
incorporated herein by reference to Exhibit 3(b) to the
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995 (File No. 1-2940).*
(4) (c) -- Form of Senior Indenture, between the Corporation and Bankers
Trust Company ("Bankers Trust"), as Trustee.**
(4) (d) -- Form of Subordinated Indenture between the Corporation and
Bankers Trust, as Trustee.**
(5) -- Opinion of Cleary, Gottlieb, Steen & Hamilton.**
(12) (a) -- Computation of the Corporation's Consolidated Ratio of Earnings
to Fixed Charges (excluding interest on deposits).*
(12) (b) -- Computation of the Corporation's Consolidated Ratio of Earnings
to Fixed Charges (including interest on deposits).*
(12) (c) -- Computation of the Corporation's Consolidated Ratio of Earnings
to Combined Fixed Charges and Preferred Stock Dividend
Requirements (excluding interest on deposits).*
(12) (d) -- Computation of the Corporation's Consolidated Ratio of Earnings
to Combined Fixed Charges and Preferred Stock Dividend
Requirements (including interest on deposits).*
(21) -- Subsidiaries of the Corporation. The Corporation's only
significant subsidiary, as defined, is Marine Midland Bank, a
state bank organized under the laws of New York State.
(23) (a) -- Consent of KPMG Peat Marwick LLP.**
(23) (b) -- Consent of KPMG Peat Marwick LLP.**
(23) (c) -- Consent of Cleary, Gottlieb, Steen & Hamilton (included in the
opinion filed herewith as Exhibit 5).**
(24) -- Power of Attorney of certain officers and directors.**
(25) -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Bankers Trust, as Trustee.**
- ---------------
*Previously filed and incorporated by reference herein.
**Filed herewith.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that the undertakings set forth in clauses (i) and (ii) above
do not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by
II-3
<PAGE>
<PAGE>
the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, as amended, each filing of the registrant's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934, as
amended, that is incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 15
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in such Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered hereby, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in such Act and
will be governed by the final adjudication of such issue.
(6) For purposes of determining any liability under the Securities Act of
1933, as amended, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(7) For the purpose of determining any liability under the Securities Act
of 1933, as amended, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(8) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of any additional trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-4
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Buffalo, State of New York, on the
23rd day of October, 1996.
HSBC AMERICAS, INC.,
By *
(James H. Cleave)
(President And Chief Executive
Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ---------------------------- ---------------------------------------------------
* Chairman of the Board of October 23, 1996
(Northrup R. Knox) Directors
* President, Chief Executive October 23, 1996
(James H. Cleave) Officer and Director
* Executive Vice President and October 23, 1996
(Robert M. Butcher) Chief Financial Officer
(Principal Financial Officer)
* Executive Vice President October 23, 1996
(Gerald A. Ronning) and Controller
(Principal Accounting Officer)
* Director October 23, 1996
(John R. H. Bond)
* Director October 23, 1996
(William R. P. Dalton)
* Director October 23, 1996
(Sir William Purves)
- ---------------
* The undersigned, by signing his name hereto, does hereby sign this
registration statement or amendment on behalf of each of the above indicated
directors and officers of HSBC Americas, Inc. pursuant to powers of attorney
executed on behalf of each such officer.
By /s/ PHILIP S. TOOHEY
(Philip S. Toohey,
Attorney-In-Fact)
II-5
<PAGE>
<PAGE>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ---------- --------------------------------------------- -----------
1(a) -- Form of Underwriting Agreement relating to
the Debt Securities.**
(4)(a) -- Restated Certificate of Incorporation of the
Corporation, as amended through June 12, 1996,
incorporated herein by reference to Exhibit
3(a) to the Corporation's Annual Report on
Form 10-K for the year ended December 31, 1995
(File No. 1-2940)*
(4)(b) -- By-Laws of the Corporation, as amended through
June 12, 1996, incorporated herein by reference
to Exhibit 3(b) to the Corporation's Annual
Report on Form 10-K for the year ended
December 31, 1995 (File No. 1-2940).*
(4)(c) -- Form of Senior Indenture, between the
Corporation and Bankers Trust Company ("Bankers
Trust"), as Trustee.**
(4)(d) -- Form of Subordinated Indenture between the
Corporation and Bankers Trust, as Trustee.**
(5) -- Opinion of Cleary, Gottlieb, Steen & Hamilton.**
(12)(a) -- Computation of the Corporation's Consolidated
Ratio of Earnings to Fixed Charges (excluding
interest on deposits).*
(12)(b) -- Computation of the Corporation's Consolidated
Ratio of Earnings to Fixed Charges (including
interest on deposits).*
(12)(c) -- Computation of the Corporation's Consolidated
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements (excluding
interest on deposits).*
(12)(d) -- Computation of the Corporation's Consolidated
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements (including
interest on deposits).*
(21) -- Subsidiaries of the Corporation. The Corporation's
only significant subsidiary, as defined, is
Marine Midland Bank, a state bank organized
under the laws of New York State.
(23)(a) -- Consent of KPMG Peat Marwick LLP.**
(23)(b) -- Consent of KPMG Peat Marwick LLP.**
(23)(c) -- Consent of Cleary, Gottlieb, Steen & Hamilton
(included in the opinion filed herewith as
Exhibit 5).**
(24) -- Power of Attorney of certain officers and
directors.**
(25) -- Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of Bankers Trust,
as Trustee.**
- ---------------
* Previously filed and incorporated by reference herein.
** Filed herewith.
II-6
<PAGE>
<PAGE>
<PAGE>
[Form of Underwriting Agreement]
$----------
HSBC AMERICAS, INC.
__% [Senior][Subordinated] Notes Due _____
UNDERWRITING AGREEMENT
New York, New York
_____, 199_
To the Representatives
named in Schedule II
hereto of the Under-
writers named in
Schedule I hereto
Ladies and Gentlemen:
HSBC Americas, Inc., a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, $__________
principal amount of its __% [Senior][Subordinated] Notes Due
_____ (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of ________, 1996, as amended and
supplemented as of the date hereof, between the Company and
Bankers Trust Company, as trustee (the "Trustee").
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter as set forth
below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (h) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the
"Commission") a registration statement (file number
333-5801) on such Form, including a basic prospectus, for
the registration under the Act of the offering and sale of
the Securities. The Company may have filed one or more
amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to
you. Such registration statement, as so amended, has become
effective. The offering of the Securities is a delayed
offering and, although the Basic Prospectus may not include
all the information with respect to the Securities and the
offering thereof required by the Act and the rules and regulations
<PAGE>
thereunder to be included in the Final Prospectus, the Basic
Prospectus includes all such information required by the
Act and the rules and regulations thereunder to be included
therein as of the Effective Date. The Company will next
file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of
prospectus included in such registration statement relating
to the Securities and the offering thereof. As filed, such
final prospectus supplement shall include all required
information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all
substantive respects in the form furnished to the
Representatives prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain
only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised
the Representatives, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration Statement did
or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing
Date, the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable
requirements of the Act, and the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the respective rules and regulations thereunder;
on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary in order to make the statements
therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all
material respects with the requirements of the Trust
Indenture Act and the rules and regulations thereunder;
and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on
the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement
of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement
of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final
Prospectus. If the Company elects to rely upon Rule 434,
the Company will comply with the requirements of Rule 434.
(c) The financial statements of the Company, together with
the financial statements of Marine Midland Bank (the
"Subsidiary"), included or incorporated by reference in the
Registration Statement present fairly the financial
position of the Company and its consolidated subsidi-
aries and of the Subsidiary, as the case may be,
2
<PAGE>
as of the dates indicated and the results of their
operations for the periods specified. Such financial
statements have been prepared in conformity with United
States generally accepted accounting principles ("GAAP"),
applied, except as described in the Registration Statement,
on a consistent basis throughout the periods involved. The
financial statement schedules, if any, included or
incorporated by reference in the Registration Statement and
the Basic Prospectus present fairly the information
required to be stated therein. The selected financial data
and selected statistical information included in the Final
Prospectus present fairly the information shown therein
and, except as otherwise set forth in the Final Prospectus,
have been compiled on a basis consistent with that of the
audited financial statements included or incorporated by
reference in the Registration Statement and the Basic
Prospectus. In addition, any pro forma financial statements
of the Company and the related notes thereto included or
incorporated by reference in the Registration Statement and
the Final Prospectus comply as to form in all material
respects with the accounting requirements of the Act and
the rules and regulations thereunder; the pro forma
adjustments have been properly applied to the historical
amounts in the compilation of such pro forma financial
statements; the assumptions described in the notes to such
pro forma financial statements provide a reasonable basis
for presenting the significant direct effects of the
transactions contemplated therein and such pro forma
adjustments give appropriate effect to those assumptions,
in each case, in accordance with Regulation S-X.
(d) The documents incorporated by reference in the
Registration Statement and the Final 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 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 Registration Statement and
the Final Prospectus, 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 thereunder and will not contain an untrue
statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading.
(e) The Indenture, each supplement thereto, if any, to the
date hereof and the supplement thereto or board resolution
setting forth the terms of the Securities (the Indenture,
as so supplemented by such supplement or supplements and/or
board resolution, being herein referred to as the
"Designated Indenture"), have been duly authorized by the
Company. The Indenture as executed is or will be
substantially in the form filed as an exhibit to the
Registration Statement. The Designated Indenture, when duly
executed and delivered (to the extent required by the
Indenture) by the Company and the Trustee, will constitute
a valid and binding obligation of the Company, assuming due
authorization thereof by the Trustee, enforceable against the
3
<PAGE>
Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(f) The Securities have been duly authorized and, when
such Securities are executed, authenticated and delivered
in the manner provided for in the Designated Indenture and
issued and paid for in accordance with this Agreement, such
Securities will constitute valid and binding obligations of
the Company entitled to the benefits of the Designated
Indenture and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(g) No authorization, approval, consent or license of any
government, governmental instrumentality, authority or
court is required for the issue and sale of the Securities
or the consummation of the other transactions contemplated
by this Agreement or the Designated Indenture except (A)
the registration of the Securities under the Act and the
Trust Indenture Act, and (B) such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Securities by the Underwriters.
(h) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "Effective
Date" shall mean each date that the Registration Statement
and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered
by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) of this Section 1
contained in the Registration Statement at the Effective
Date. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus
which describes the Securities and the offering thereof and
is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating
to the Securities that is first filed pursuant to Rule
424(b) after the Execution Time, together with the Basic
Prospectus. The "Registration Statement" shall mean the
registration statement referred to in the first sentence of
paragraph (a) of this Section 1, including incorporated
documents, exhibits and financial statements, as amended at
the Execution Time (or, if not effective at the Execution
Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement
as so amended. Such term shall include any Rule 430A
4
<PAGE>
Information or Rule 434 Information deemed to be included
therein at the Effective Date as provided by Rule 430A and
Rule 434, respectively, and, in the event that the Company
files a registration statement pursuant to paragraph (b) of
Rule 462 (the "Rule 462(b) Registration Statement"), then,
after such filing, all references to "Registration
Statement" shall be deemed to include the Rule 462(b)
Registration Statement. In addition, if the Company elects
to rely upon Rule 434, then all references to "Final
Prospectus" shall also be deemed to include the applicable
term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the
Underwriters by the Company in reliance upon Rule 434.
"Rule 415," "Rule 424," "Rule 430A" "Rule 434", "Rule 462",
"Regulation S-K" and "Regulation S-X" refer to such rules
or regulation under the Act. "Rule 430A Information" means
information with respect to the Securities and the offering
thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A.
"Rule 434 Information" means any information with respect
to the Securities and the offering thereof contained in any
Term Sheet deemed to be a part of the Registration
Statement when it became effective pursuant to paragraph
(d) of Rule 434. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall also be deemed to
refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. For
purposes of this Agreement, all references to the
Registration Statement, Basic Prospectus, Preliminary Final
Prospectus, Final Prospectus, Term Sheet or to any
amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("EDGAR").
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of _____% of the principal
amount thereof, plus accrued interest, if any, on the Securities
from ____, 199_, to the Closing Date, the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule
I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on
_____ 1996, or such later date (not later than _____, 1996) as
the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein called the
5
<PAGE>
"Closing Date"). Delivery of the Securities shall be made on the
instructions of the Representatives for the respective accounts
of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company in immediately
available funds. Delivery of, and payment for, the Securities
shall be made through the facilities of the Depository Trust
Company.
The Company agrees to have the Securities available
for inspection and checking by the Representatives in New York,
New York, not later than 1:00 PM on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to
the public as set forth in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will comply with the requirements of Rule
430A and/or Rule 434 if and as applicable. Prior to the
termination of the offering of the Securities, the Company
will not file any amendment of the Registration Statement
or supplement (including the Final Prospectus or any
Preliminary Final Prospectus, any Term Sheet or Rule 462(b)
Registration Statement) to the Basic Prospectus unless the
Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment, Term
Sheet or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will
promptly advise the Representatives (i) when any
post-effective amendment to the Registration Statement,
shall have become effective, (ii) when the Final
Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b), (iii)
when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the
Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as
then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein in the light of the
circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply
6
<PAGE>
with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will notify the
Representatives and prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies
of the Registration Statement (including exhibits thereto)
and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
Copies of the Registration Statement, each amendment
thereto, any Preliminary Final Prospectus and the Final
Prospectus and any amendment or supplements thereto
furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T of the rules and regulations
under the Act.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as
the Representatives may designate, will maintain such
qualifications in effect so long as required for the
distribution of the Securities, will arrange for the
determination of the legality of the Securities for
purchase by institutional investors and will pay the fee of
the National Association of Securities Dealers, Inc., in
connection with its review, if any, of the offering.
(f) The Company will not, until the first business day
following the Closing Date, without prior written consent
of the Representatives, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce
the offering of, any debt securities issued or guaranteed
by the Company other than the Securities.
(g) The Company confirms as of the date hereof that it is
in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of
Doing Business with Cuba, and the Company further agrees
that if it commences engaging in business with the
government of Cuba or with any person or affiliate located
in Cuba after the date the Registration Statement becomes
or has become effective with the Securities and Exchange
Commission or with the Florida Department of Banking and
Finance (the "Department"), whichever date is later, or if
the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to
the Department.
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6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall
be subject to the accuracy of the representations and warranties
on the part of the Company contained herein as of the Execution
Time and the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the Act
and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Act
and no proceedings for that purpose shall have been
initiated or be pending or threatened by the Commission,
and any request on the part of the Commission for
additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A
Final Prospectus containing information relating to the
description of the Securities, the specific method of
distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424(b) (1) (2) (3)
(4) or (5), as applicable (or any required post-effective
amendment providing such information shall have been filed
and declared effective in accordance with the requirements
of Rule 430A), or, if the Company has elected to rely upon
Rule 434, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance
with Rule 424(b)(7).
(b) The Company shall have furnished to the
Representatives the opinion of Cleary, Gottlieb, Steen &
Hamilton, counsel for the Company, or __________, Counsel
for the Company, dated the Closing Date, to the effect, in
aggregate, that:
(i) each of the Company and Marine Midland Bank (the
"Subsidiary") has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own its properties and conduct its
business as described in the Final Prospectus; and the
Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as
amended;
(ii) the Company's authorized equity
capitalization is as set forth in the Final
Prospectus; the Securities conform to the description
thereof contained in the Final Prospectus; and, if the
Securities are to be listed on any stock exchange,
authorization therefor has been given, subject to
official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Securities
with such securities exchange and such counsel has no
reason to believe that the Securities will not be
authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(iii) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act and conforms to the description thereof
in the Final Prospectus, and constitutes a legal, valid and
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<PAGE>
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in
effect); and the Securities have been duly authorized
and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this
Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of
the Indenture;
(iv) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus; and the
statements included or incorporated in the Final
Prospectus describing any legal proceedings relating
to the Company fairly summarize such matters;
(v) the Registration Statement has become effective
under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the
Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to
the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other
than the financial statements and other financial and
statistical information contained therein as to which
such counsel need express no opinion) comply as to
form in all material respects with the applicable
requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe
that at the Execution Date or the Closing Date the
Registration Statement contained any untrue statement
of a material fact or omitted to state any material
fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Final Prospectus includes any untrue statement of a
material fact or omits to state a material fact
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading;
(vi) this Agreement has been duly authorized, executed
and delivered by the Company;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required
for the consummation of the transactions contemplated
herein, except such as have been obtained under the
Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters as contemplated by this Agreement and
such other approvals (specified in such opinion) as
have been obtained;
9
<PAGE>
(viii) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach of, or
constitute a default under the charter or by-laws of
the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a
party or bound, or any order or regulation known to
such counsel to be applicable to the Company or any of
its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its
subsidiaries; and
(ix) no holders of securities of the Company have
rights to the registration of such securities under
the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any
jurisdiction other than the States of New York and Delaware
or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Underwriters and (B) as
to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in
this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Representatives shall have received from Brown &
Wood LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the
issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus (together with
any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Senior Vice President and the Controller of the Company,
dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company
has complied with all the agreements and satisfied all
the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
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<PAGE>
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive
of any supplement thereto), there has been no material
adverse change in the condition (financial or other),
earnings, business or properties of the Company and
its subsidiaries, whether or not arising from
transactions in the ordinary course of business,
except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time, KPMG Peat Marwick LLP shall
have furnished to the Representatives a letter or letters
(which may refer to letters previously delivered to the
Representatives), dated as of the Execution Time, in form
and substance satisfactory to the Representatives,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules and pro forma
financial statements, if any, included or incorporated
in the Registration Statement and the Final Prospectus
and reported on by them comply in form in all material
respects with the applicable accounting requirements
of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and
its subsidiaries; their limited review in accordance
with standards established by the American Institute
of Certified Public Accountants of the unaudited
interim financial information as indicated in their
reports incorporated in the Registration Statement and
the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with
respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the
stockholders, directors and executive and audit
committees of the Company and the Subsidiary; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions
and events subsequent to the date of the most recent
audited financial statements in or incorporated in the
Final Prospectus, nothing came to their attention
which caused them to believe that:
(1) any unaudited financial statements included
or incorporated in the Registration Statement and
the Final Prospectus do not comply in form in all
material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; or said unaudited financial statements are
not in conformity with generally accepted
accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
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<PAGE>
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the
date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Final Prospectus, there were
any material changes, at a specified date not
more than five business days prior to the date of
the letter, in the consolidated long-term debt or
capital stock of the Company and its subsidiaries
or decreases in the stockholders' equity of the
Company and its subsidiaries as compared with the
amounts shown on the most recent consolidated
balance sheet included or incorporated in the
Registration Statement and the Final Prospectus,
except in all instances for changes or decreases
set forth in such letter, in which case the
letter shall be accompanied by an explanation by
the Company as to the significance thereof unless
said explanation is not deemed necessary by the
Representatives;
(3) the amounts included in any unaudited
"capsule" information included or incorporated in
the Registration Statement and the Final
Prospectus do not agree with the amounts set
forth in the unaudited financial statements for
the same periods or were not determined on a
basis substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus.
(iii) they have performed certain other specified
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement
and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of
the Company's Annual Report on Form 10-K, incorporated
in the Registration Statement and the Final
Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement
and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding
any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement
and the Final Prospectus, on the basis of a reading of
the unaudited pro forma financial statements included
or incorporated in the Registration Statement and the
Final Prospectus (the "pro forma financial
statements"), carrying out certain specified
procedures, inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters, and proving the arithmetic
accuracy of the
12
<PAGE>
application of the pro forma adjustments to the
historical amounts in the pro forma financial
statements, nothing came to their attention which
caused them to believe that the pro forma financial
statements do not comply in form in all material
respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of such
statements.
References to the Final Prospectus in this paragraph
(e) include any supplement thereto to the date of the
letter.
In addition, at the Closing Date, KPMG Peat Marwick
LLP. shall have furnished to the Representatives a letter
or letters, dated as of the Closing Date, in form and
substance satisfactory to the Representatives, to the
effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the
Final Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph
(e) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting
the business or properties of the Company and its
subsidiaries the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement
thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the ratings of any of the Company's
debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule
436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the
direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior
to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
7. Payment of Expenses. The Company will pay
and bear all costs and expenses incident to the
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<PAGE>
performance of its obligations under this Agreement
including (a) the printing and filing of the
Registration Statement (including financial statements and
exhibits), as originally filed and as amended, the Basic
Prospectus, the Preliminary Final Prospectus (if any), the Final
Prospectus, the Term Sheet and any amendments or supplements to
any of the foregoing, and the cost of furnishing copies thereof
to the Underwriters, (b) the printing and distribution of this
Agreement, the Indenture, the Securities and the Blue Sky Survey
and Legal Investment Survey (if any), (c) the delivery of the
Securities to the Underwriters or any depositary, (d) the fees
and disbursements of the Company's counsel and accountants, (e)
the qualification of the Securities under the applicable
securities laws in accordance with Section 5(e) and any filing
for review of the offering with the National Association of
Securities Dealers, Inc., including filing fees and disbursements
of counsel to the Underwriters in connection therewith and in
connection with the Blue Sky Survey and Legal Investment Survey
(if any), (f) the costs and charges of any transfer agent,
registrar or depositary with respect to the Securities, (g) the
fees of rating agencies, (h) the fees and expenses of the
Trustee, including the reasonable fees and disbursements of
counsel for the Trustee, and (i) any fees and expenses incurred
in connection with listing the Securities on any securities
exchange.
If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and
each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or investigations or proceedings
commenced or threatened by any governmental agency or body in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, 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 agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending against any
such action, investigation or proceeding; provided, however, that
the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any
14
<PAGE>
Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person
who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set
forth in the ___________ paragraph of the cover page and the ____
paragraph(s) under the heading "Plan of Distribution" in the
Basic Prospectus and the ________ paragraph of the cover page and
the _______________ paragraphs under the heading "Underwriting"
in the Prospectus Supplement constitute the only information
furnished in writing by or on behalf of the several Underwriters
for inclusion in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An
15
<PAGE>
indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit
or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to
hold harmless any indemnified party for any reason, the Company
and the Underwriters agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and
one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by
the Company and by the Underwriters from the offering of the
Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and of the Underwriters in
connection with the statement or omissions which resulted in such
Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the
Final Prospectus. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to
information provided by the Company or the Underwriters. The
Company and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), 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. For purposes
of this Section 8, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall
have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to applicable terms and conditions
of this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the
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<PAGE>
performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal
amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate principal amount of Securities set
forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate principal amount of
Securities set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and
if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Securities, if prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the
Commission or trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or
New York State authorities, (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it,
in the judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto) or (iv) subsequent to the Execution Time,
there shall have occurred any of the events specified in Section
6(f) or Section 6(g).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 7, 8, 11 and 14 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to ____________ at ________________________, attention
of the Legal Department; or, if sent to the Company, will be
mailed, delivered or telegraphed and
17
<PAGE>
confirmed to it at One Marine Midland Center, Buffalo, New York
14203, attention of the Secretary.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have
any right or obligation hereunder.
18
<PAGE>
14. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the Company
and the several Underwriters.
Very truly yours,
HSBC Americas, Inc.
By:______________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of
the date first above written.
[List all Representatives]
By: [Lead Manager]
By:______________________________
Name:
Title:
For themselves and the other several Underwriters, if any, named
in Schedule I to the foregoing Agreement.
19
<PAGE>
SCHEDULE I
Principal
Amount of
Securities to
Underwriters be Purchased
- ------------ ------------
$
$
$
$
$
$
$
Total............... $
=
20
<PAGE>
SCHEDULE II
REPRESENTATIVES
======================
----------------------
21
<PAGE>
[Form of Senior Indenture]
HSBC AMERICAS, INC.
Issuer
TO
BANKERS TRUST COMPANY
Trustee
------------------------
INDENTURE
Dated as of October 24, 1996
-------------------------
SENIOR DEBT SECURITIES
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of October 24, 1996
Trust Indenture Act Section Indenture Section
ss.310 (a)(1)........................ 609
(a)(2)......................... 609
(a)(3)......................... Not Applicable
(a)(4)......................... Not Applicable
(a)(5)......................... 609
(b)....................................608............................
.......................................610.............................
.
(c)....................................Not.Applicable.................
.
ss.311 (a)....................... 613
(b)............................ 613
(c)....................................Not.Applicable.................
.
ss.312 (a)....................... 701
.......................................702(a)..........................
.
(b)............................ 702(b)
(c)............................ 702(c)
ss.313 (a)....................... 703
(b)............................ 703
(c)............................ 703
(d)............................ 703
ss.314 (a)....................... 704
(b)....................................Not.Applicable.................
(c)(1)......................... 102
(c)(2)......................... 102
(c)(3)......................... Not Applicable
(d)............................ Not Applicable
(e)............................ 102
ss.315 (a)....................... 601(a)
.......................................601(c)..........................
.
(b)............................ 602
.......................................703.............................
.
(c)............................ 601(b)
(d)............................ 601(c)
(d)(1)......................... 601(a)
(d)(2)......................... 601(c)(2)
(d)(3)......................... 601(c)(3)
(e)............................ 514
ss.316 (a)....................... 101
(a)(1)(A)...................... 502
.......................................512.............................
.
(a)(1)(B)...................... 513
(a)(2)......................... Not Applicable
(b)............................ 508
(c) .................. 508
ss.317 (a)(1).................... 503
(a)(2)......................... 504
(b)............................ 1203
ss.318 (a)....................... 106
---------------
Note: This reconciliation and tie shall not for any purpose, be deemed
to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
PARTIES...........................................................1
RECITALS..........................................................1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 101. DEFINITIONS.........................................1
Act.............................................................2
Affiliate.......................................................2
Authenticating Agent............................................2
Board of Directors..............................................2
Board Resolution................................................2
Business Day....................................................2
Code............................................................2
Commission......................................................2
Company.........................................................3
Company Request.................................................3
Company Order...................................................3
Corporate Trust Office..........................................3
corporation.....................................................3
Debt Securities.................................................3
Defaulted Interest..............................................3
Depositary......................................................3
Discharged......................................................3
Discount Security...............................................3
Dollar..........................................................3
Event of Default................................................3
Floating Rate Security..........................................4
Global Security.................................................4
Holder..........................................................4
Indenture.......................................................4
Indexed Security................................................4
interest........................................................4
Interest Payment Date...........................................4
Maturity........................................................4
Officers' Certificate...........................................4
Opinion of Counsel..............................................4
Outstanding.....................................................4
Paying Agent....................................................5
Person..........................................................5
Place of Payment................................................5
Predecessor Security............................................6
Redemption Date.................................................6
Redemption Price................................................6
Registered Holder...............................................6
Registered Security.............................................6
Regular Record Date.............................................6
Repayment Date..................................................6
Responsible Officer.............................................6
Security Register...............................................6
Security Registrar..............................................6
Special Record Date.............................................6
Stated Maturity.................................................7
Subsidiary......................................................7
Trust Indenture Act.............................................7
Trustee.........................................................7
U.S. Government Obligations.....................................7
United States...................................................7
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS................7
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE..............8
SECTION 104. NOTICES, ETC., TO TRUSTEE AND COMPANY...............8
SECTION 105. NOTICE TO HOLDERS; WAIVER...........................9
SECTION 106. CONFLICT WITH TRUST INDENTURE ACT...................9
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS............9
SECTION 108. SUCCESSORS AND ASSIGNS..............................9
SECTION 109. SEPARABILITY CLAUSE................................10
SECTION 110. BENEFITS OF INDENTURE..............................10
SECTION 111. GOVERNING LAW......................................10
SECTION 112. LEGAL HOLIDAYS.....................................10
SECTION 113. NO SECURITY INTEREST CREATED.......................10
SECTION 114. LIMITATION OF INDIVIDUAL LIABILITY.................10
ARTICLE II
DEBT SECURITY FORMS
SECTION 201. FORMS GENERALLY....................................11
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION....12
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION BY AN
AUTHENTICATING AGENT...............................12
SECTION 204. SECURITIES ISSUABLE IN GLOBAL FORM.................12
ARTICLE III
THE DEBT SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES...............13
SECTION 302. DENOMINATIONS......................................15
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.....16
SECTION 304. TEMPORARY DEBT SECURITIES..........................18
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE................19
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT
SECURITIES.........................................21
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.....22
SECTION 308. CANCELLATION.......................................23
SECTION 309. COMPUTATION OF INTEREST............................23
SECTION 310. CUSIP NUMBERS......................................23
SECTION 311. PERSONS DEEMED OWNERS..............................24
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE............24
SECTION 402. APPLICATION OF TRUST MONEY.........................25
SECTION 403. INDEMNITY..........................................26
ARTICLE V
REMEDIES
SECTION 501. EVENTS OF DEFAULT..................................26
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.27
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.........................................28
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM...................29
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
DEBT SECURITIES...................................30
SECTION 506. APPLICATION OF MONEY COLLECTED.....................30
SECTION 507. LIMITATION ON SUITS................................30
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST...............................31
SECTION 509. RESTORATION OF RIGHT AND REMEDIES..................31
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.....................31
SECTION 511. DELAY OR OMISSION NOT WAIVER.......................32
SECTION 512. CONTROL BY HOLDERS.................................32
SECTION 513. WAIVER OF PAST DEFAULTS............................32
SECTION 514. UNDERTAKING FOR COSTS..............................33
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS...................33
ARTICLE VI
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES................33
SECTION 602. NOTICE OF DEFAULTS.................................34
SECTION 603. CERTAIN RIGHTS OF TRUSTEE..........................35
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES.........................................36
SECTION 605. MAY HOLD DEBT SECURITIES...........................36
SECTION 606. MONEY HELD IN TRUST................................36
SECTION 607. COMPENSATION AND REIMBURSEMENT.....................36
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS............37
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY............37
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..38
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.............39
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS...........................................41
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..41
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT................41
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS............................................42
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATION TO
HOLDERS............................................42
SECTION 703. REPORTS BY TRUSTEE.................................44
SECTION 704. REPORTS BY COMPANY.................................44
ARTICLE VIII
CONCERNING THE HOLDERS
SECTION 801. ACTS OF HOLDERS....................................45
SECTION 802. PROOF OF OWNERSHIP; PROOF OF EXECUTION OF
INSTRUMENTS BY HOLDERS.............................45
SECTION 803. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.......46
ARTICLE IX
HOLDERS' MEETINGS
SECTION 901. PURPOSES OF MEETINGS...............................46
SECTION 902. CALL OF MEETINGS BY TRUSTEE........................47
SECTION 903. CALL OF MEETINGS BY COMPANY OR HOLDERS.............47
SECTION 904. QUALIFICATIONS FOR VOTING..........................47
SECTION 905. REGULATIONS........................................47
SECTION 906. VOTING.............................................48
SECTION 907. NO DELAY OF RIGHTS BY MEETING......................48
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE
SECTION 1001. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.............................................49
SECTION 1002. SUCCESSOR CORPORATION SUBSTITUTED.................49
SECTION 1003. OPINION OF COUNSEL................................49
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 1101. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS...........................................50
SECTION 1102. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...51
SECTION 1103. EXECUTION OF SUPPLEMENTAL INDENTURES..............52
SECTION 1104. EFFECT OF SUPPLEMENTAL INDENTURES.................52
SECTION 1105. CONFORMITY WITH TRUST INDENTURE ACT...............52
SECTION 1106. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL
INDENTURES........................................52
SECTION 1107. NOTICE OF SUPPLEMENTAL INDENTURE..................53
ARTICLE XII
COVENANTS
SECTION 1201. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST........53
SECTION 1202. MAINTENANCE OF OFFICE OR AGENCY...................53
SECTION 1203. MONEY FOR DEBT SECURITIES; PAYMENTS TO BE HELD IN
TRUST.............................................53
SECTION 1206. OFFICERS' CERTIFICATE AS TO DEFAULT...............55
SECTION 1207. WAIVER OF CERTAIN COVENANTS.......................55
ARTICLE XIII
REDEMPTION OF DEBT SECURITIES
SECTION 1301. APPLICABILITY OF ARTICLE..........................55
SECTION 1302. ELECTION TO REDEEM; NOTICE TO TRUSTEE.............55
SECTION 1303. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE
REDEEMED..........................................56
SECTION 1304. NOTICE OF REDEMPTION..............................56
SECTION 1305. DEPOSIT OF REDEMPTION PRICE.......................57
SECTION 1306. DEBT SECURITIES PAYABLE ON REDEMPTION DATE........57
SECTION 1307. DEBT SECURITIES REDEEMED IN PART..................58
ARTICLE XIV
Defeasance
SECTION 1401. APPLICABILITY OF ARTICLE..........................58
SECTION 1402. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S.
GOVERNMENT OBLIGATIONS............................58
SECTION 1403. DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST...............................60
SECTION 1404. REPAYMENT TO COMPANY..............................63
TESTIMONIUM......................................................63
SIGNATURES AND SEALS.............................................63
ACKNOWLEDGMENTS..................................................64
<PAGE>
INDENTURE (this "Indenture") dated as of October 24, 1996,
between HSBC AMERICAS, INC., a Delaware corporation (the
"Company"), having its principal office at One Marine Midland
Center, Buffalo, New York 14203, and BANKERS TRUST COMPANY, a New
York banking corporation, as Trustee hereunder (the "Trustee"),
having its Corporate Trust Office (as defined below) at 4 Albany
Street, 4th Floor, New York, New York 10006.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time
for its lawful purposes senior debt securities (the "Debt
Securities") evidencing its indebtedness, and has duly authorized
the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to
aggregate principal amount, to bear interest at the rates or
formulas, to mature at such times and to have such other
provisions as shall be fixed therefor as hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are deemed to be
incorporated into this Indenture and shall, to the extent
applicable, be governed by such provisions.
All things necessary have been done to make this Indenture
a valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Debt Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Debt Securities or of the Debt Securities of
any series, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 101. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article I have the
meanings assigned to them in this Article I, and include the
plural as well as the singular;
(2) all other terms used herein that 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
<PAGE>
herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required
or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States at the date of such
computation; and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article III or
Article VI, are defined in those respective Articles.
"Act", when used with respect to any Holder, has the
meaning specified in Section 801.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" has the meaning specified in Section 614.
"Board of Directors" means either the board of
directors of the Company, or the executive or any other committee
of that board duly authorized to act in respect hereof.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" when used with respect to any Place of
Payment specified pursuant to Section 301 means any day that is
not a Saturday, a Sunday or a legal holiday or a day on which
banking institutions or trust companies in such Place of Payment
are authorized or obligated by law to close, except as otherwise
specified pursuant to Section 301.
"Code" means the Internal Revenue Code of 1986 as in effect
on the date hereof.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor
corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
<PAGE>
"Company Request" and "Company Order" mean,
respectively, a written request or order signed in the name of
the Company by the Chairman, a Vice Chairman, the President or a
Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the
Company whether or not designated by a number or word or words
added before or after the title "Vice President"), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee.
"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 execution of this instrument is located at Four
Albany Street, New York, NY 10006.
The term "corporation" includes corporations,
associations, companies and business trusts.
"Debt Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Debt
Securities authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt
Securities of any series issuable in whole or in part in the form
of one or more Global Securities, the Person designated as
Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Debt
Securities of any such series shall mean the Depositary with
respect to the Debt Securities of that series.
"Discharged" has the meaning specified in Section 1402.
"Discount Security" means any Debt Security that is
issued with "original issue discount" within the meaning of
Section 1273(a) of the Code and the regulations thereunder and
any other Debt Security designated by the Company as issued with
original issue discount for United States Federal income tax
purposes.
"Dollar" or "$" means such currency of the United
States as at the time of payment is legal tender for the payment
of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Floating Rate Security" means a Debt Security that
provides for the payment of interest at a variable rate
determined periodically by reference to an interest determination
method specified pursuant to Section 301.
<PAGE>
"Global Security" means a Registered Security
evidencing all or part of a series of Debt Securities, issued to
the Depositary for such series in accordance with Section 303 and
bearing the legend prescribed in Section 303(c).
"Holder" means, with respect to a Registered Security, the
Registered Holder.
"Indenture" means this instrument as originally
executed, or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, unless the
context otherwise requires, shall include the terms of a
particular series of Debt Securities as established pursuant to
Section 301.
"Indexed Security" means a Debt Security the terms of
which provided that the principal amount thereof payable at
Stated Maturity may be more or less than the principal face
amount thereof at original issuance.
The term "interest" when used with respect to a
Discount Security which by its terms bears interest only after
Maturity means interest payable after Maturity.
"Interest Payment Date" with respect to any Debt
Security means the Stated Maturity of an installment of interest
on such Debt Security.
"Maturity" when used with respect to any Debt Security
means the date on which the principal of such Debt Security
becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for
redemption, repayment at the option of the Holder thereof or
otherwise.
"Officers' Certificate" means a certificate signed by
the Chairman, a Vice Chairman, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel to the Company and who shall be
satisfactory to the Trustee, that is delivered to the Trustee.
"Outstanding" when used with respect to Debt
Securities means, as of the date of determination, all Debt
Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Debt Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose
payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Debt Securities or from its obligations
<PAGE>
with respect to which the Company shall have been Discharged;
provided, however, that if such Debt Securities or portions
thereof are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Debt Securities that have been paid pursuant to
Section 306 or in exchange for, or in lieu of, other Debt
Securities which have been authenticated and delivered pursuant
to this Indenture, other than any such Debt Securities in respect
of which there shall have been presented to the Trustee proof
satisfactory to it that such Debt Securities are held by a bona
fide purchaser in whose hands such Debt Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Debt Securities Outstanding have
performed any Act hereunder, Debt Securities owned by the Company
or any other obligor upon the Debt Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such Act, only
Debt Securities that the Trustee knows to be so owned shall be so
disregarded. Debt Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right to act with respect to such Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have performed
any Act hereunder, (i) the principal amount of a Discount
Security that shall be deemed to be Outstanding for such purpose
shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 502 and (ii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation
and that shall be deemed to be Outstanding for such purpose shall
be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such
Indexed Security pursuant to Section 301.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any) or interest
on any Debt Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, association, joint stock company,
trust, estate, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the
principal of (and premium, if any) and interest on the Debt
Securities of that series are payable as specified pursuant to
Section 301.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the
same debt as that evidenced by such particular Debt Security,
and, for the purposes of this definition, any Debt Security
authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debt Security.
"Redemption Date" means the date fixed for redemption
of any Debt Security pursuant to this Indenture which, in the
case of a Floating Rate Security, unless otherwise specified
pursuant to Section 301, shall be an Interest Payment Date only.
"Redemption Price" means, in the case of a Discount
Security, the amount of the principal thereof that would be due
and payable as of the Redemption Date upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 and,
in the case of any other Debt Security, the principal amount
thereof, plus, in each case, premium, if any, and accrued and
unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security
registered as to principal, premiums, if any, and interest in the
Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date
means the date specified for that purpose pursuant to Section 301
for such Interest Payment Date.
"Repayment Date" means, when used with respect to any
Debt Security to be repaid at the option of the Holder, the date
fixed for such repayment by or pursuant to this Indenture.
"Responsible Officer" when used with respect to the
Trustee means any officer within the Corporate Trust and Agency
Group (or any successor group of the Trustee), including any vice
president, assistant vice president, assistant secretary, or
other trust officer or assistant officer of the Trustee
customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the
Trustee's Corporate Trust Office because of his knowledge of and
familiarity with the particular subject.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305(a).
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity" when used with respect to any Debt
Security or any installment of principal thereof or premium
thereon or interest thereon means the date specified in such Debt
Security as the date on which the principal of such Debt Security
or such installment of principal, premium or interest is due and
payable.
<PAGE>
"Subsidiary" means a corporation, limited liability
company, partnership or other entity, at least a majority of the
outstanding voting stock, membership interests, or partnership
interests, as the case may be, of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries
of the Company. For the purposes of this definition, "voting
stock" means stock having voting power for the election of
directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" or "TIA" means the Trust
Indenture Act of 1939 as in force at the date as of which this
instrument was executed, except as provided in Section 1105.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the
Trustee with respect to Debt Securities of such series.
"U.S. Government Obligations" has the meaning specified in
Section 1402.
"United States" means the United States of America
(including the States and the District of Columbia), and its
possessions.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, 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 is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
<PAGE>
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters,
upon an Opinion of Counsel, or a certificate, or representations
by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or
representations or Opinion of Counsel with respect to the matters
upon which his certificate or opinion is based are erroneous. Any
such certificate or representation or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 104. Notices, etc., to Trustee and Company.
Any Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed
with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, 4
Albany Street, 4th Floor, New York, New York 10006 ((fax)
212-250-6392); or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first class
postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing
to the Trustee by the Company.
<PAGE>
Any such Act or other document shall be in the English
language.
SECTION 105. Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event by the
Company or the Trustee, such notice shall be sufficiently given
to Registered Holders (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid,
to such Registered Holders as their names and addresses appear in
the
Security Register, within the time prescribed; provided, however,
that, in any case, any notice to Holders of Floating Rate
Securities regarding the determination of a periodic rate of
interest, if such notice is required pursuant to Section 301,
shall be sufficiently given if given in the manner specified
pursuant to Section 301. In any case where notice to Registered
Holders is given by mail, neither the failure to mail such notice
nor any defect in any notice so mailed to any particular
Registered Holder shall affect the sufficiency of such notice
with respect to other Registered Holders, and any notice that is
mailed in the manner herein provided shall be conclusively deemed
to have been received by such Registered Holder, whether or not
such Registered Holder actually receives such notice.
In the event of suspension of regular mail service or
by reason of any other cause it shall be impracticable to give
notice by mail, then such notification as shall be given with the
approval of the Trustee shall constitute sufficient notice for
every purpose hereunder.
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 Registered Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance on such waiver.
SECTION 106. Conflict with Trust Indenture Act. If and
to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or another
provision (an "incorporated version") included in this Indenture
by operation of, Sections 310 to 318, inclusive, of the Trust
Indenture Act, such imposed duties or incorporated provision
shall control.
SECTION 107. 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 108. Successors and Assigns. All covenants and
agreements in this Indenture by the parties hereto shall bind
their respective successors and assigns and inure to the benefit
of their permitted successors and assigns, whether so expressed
or not.
SECTION 109. Separability Clause. In case any
provision in this Indenture or in the Debt Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
<PAGE>
SECTION 110. Benefits of Indenture. Nothing in this
Indenture or in the Debt Securities, express or implied, shall
give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent, and their
respective successors hereunder, and the Holders, any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law. THIS INDENTURE AND THE
DEBT SECURITIES SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID
STATE.
SECTION 112. Legal Holidays. Unless otherwise
specified pursuant to Section 301, in any case where any Interest
Payment Date, Redemption Date or Maturity of any Debt Security of
any series shall not be a Business Day at any Place of Payment
for the Debt Securities of that series, then (notwithstanding any
other provision of this Indenture or of the Debt Securities)
payment of principal (and premium, if any) or interest need not
be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on such Interest Payment
Date, Redemption Date or Maturity, and no interest shall accrue
on such payment for the period from and after such Interest
Payment Date, Redemption Date or Maturity, as the case may be, to
such Business Day if such payment is made or duly provided for on
such Business Day.
SECTION 113. No Security Interest Created. Nothing in
this Indenture or in the Debt Securities, express or implied,
shall be construed to constitute a security interest in favor of
the Registered Holders under the Uniform Commercial Code or
similar legislation, as now or hereafter enacted and in effect in
any jurisdiction where property of the Company or its
Subsidiaries is or may be located.
SECTION 114. Limitation of Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Debt Security because of
any indebtedness evidenced thereby, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor corporation,
either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or by any legal or equitable proceeding
or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or
any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in
this Indenture or in any Debt Security or implied therefrom; and
that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or
<PAGE>
director, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any
Debt Security or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Debt
Security.
ARTICLE II
DEBT SECURITY FORMS
SECTION 201. Forms Generally. The Debt Securities of
each series shall be substantially in one of the forms
established in or pursuant to a Board Resolution and set forth in
an Officers' Certificate, or one or more indentures supplemental
hereto, and shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture or any indenture supplemental hereto, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any securities exchange on
which any series of the Debt Securities may be listed or of any
automated quotation system on which any such series may be
quoted, or to conform to usage, all as determined by the officers
executing such Debt Securities as conclusively evidenced by their
execution of such Debt Securities. If the form of a series of
Debt Securities is established in or pursuant to a Board
Resolution, a copy of such Board Resolution shall be delivered to
the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the form of such series.
The definitive Debt Securities, if any, of each series
shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be
produced in any other manner; provided that such manner is
permitted by the rules of any securities exchange on which such
series of Debt Securities may be listed or of any automated
quotation system on which such series may be quoted, all as
determined by the officers executing such Debt Securities, as
conclusively evidenced by their execution of such Debt
Securities.
<PAGE>
SECTION 202. Form of Trustee's Certificate of
Authentication. The form of the Trustee's certificate of
authentication to be borne by the Debt Securities shall be
substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series
designated therein issued under the within mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
by____________________
Authorized Signatory
SECTION 203. Form of Trustee's Certificate of
Authentication by an Authenticating Agent. If at any time there
shall be an Authenticating Agent appointed with respect to any
series of Debt Securities, then the Trustee's Certificate of
Authentication by such Authenticating Agent to be borne by Debt
Securities of each such series shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series
designated therein issued under the within mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
by____________________
Authenticating Agent
by____________________
Authorized Signatory
SECTION 204. Securities Issuable in Global Form. If
Debt Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then,
notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified
therein and may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time
endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any
endorsement of a Debt Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made
<PAGE>
by the Trustee in such manner and upon instructions given by
such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section
303 or 304. 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
instructions given by the Person or Persons specified therein or
in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or
delivery or redelivery of a Debt Security in global form shall be
in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303
shall apply to any Debt Security represented by a Debt Security
in global form if such Debt Security was never issued and sold by
the Company and the Company delivers to the Trustee the Debt
Security in global form together with written instructions (which
need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) with regard to the reduction in the
principal amount of Debt Securities represented thereby, together
with the written statement contemplated by the last sentence of
Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of
principal of any premium and interest on any Debt Security in
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 Company, the
Trustee and any agent of the Company and the Trustee shall treat
as the Holder of such principal amount of Outstanding Securities
represented by a permanent global Security in registered form,
the Holder of such permanent global Security in registered form.
ARTICLE III
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Debt Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more
series. There shall be established in or pursuant to one or more
Board Resolutions, and, subject to Section 303, set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of
any series any or all of the following, as applicable:
(1) the title of the Debt Securities of the series
(which shall distinguish the Debt Securities of such series from
all other series of Debt Securities);
<PAGE>
(2) the limit, if any, upon the aggregate principal
amount of the Debt Securities of the series that may be
authenticated and delivered under this Indenture (except for Debt
Securities authenticated and delivered upon transfer of, or in
exchange for, or in lieu of, other Debt Securities of such series
pursuant to Section 304, 305, 306, 1106 or 1307);
(3) the dates on which or periods during which the
Debt Securities of the series may be issued, and the dates on, or
the range of dates within, which the principal of (and premium,
if any, on) the Debt Securities of such series are or may be
payable;
(4) the rate or rates or the method of determination
thereof at which the Debt Securities of the series shall bear
interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest
shall be payable, and, in the case of Registered Securities, the
Regular Record Dates for the interest payable on such Interest
Payment Dates;
(5) the date or dates on which such interest, if any,
on the Debt Securities of the series will be payable and the
regular record date, if any, for such Interest Payment Dates or
the method by which such date or dates will be determined;
(6) the places, if any, in addition to or instead of
the Corporate Trust Office of the Trustee, where (i) the
principal of and premium, if any, and any interest on the Debt
Securities of the series will be payable, (ii) Debt Securities of
the series may be surrendered for registration of transfer, (iii)
Debt Securities of the series may be surrendered for exchange and
(iv) notices to or upon the Company in respect of the Debt
Securities of the series and this Indenture may be served;
(7) the periods within which or the dates on which,
the prices at which and the terms and conditions upon which Debt
Securities of the series may be redeemed, if any, in whole or in
part, at the option of the Company or otherwise;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which individual
Debt Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount, the portion
of the principal amount (or the method by which such portion will
be determined) of Debt Securities of the series that will be
payable upon declaration of acceleration of the Maturity thereof;
(11) any index, formula or other method (including a
method based on changes in the prices of particular securities,
currencies, intangibles, goods, articles or commodities) used to
determine the amount of payments of principal of and premium, if
any, and interest, if any, on the Debt Securities of the series;
<PAGE>
(12) whether provisions relating to defeasance and
covenant defeasance will be applicable to such series of Debt
Securities of the series;
(13) any provisions granting special rights to Holders of
Debt Securities of the series upon the occurrence of specified
events;
(14) any modifications, deletions or additions to the Events
of Default or covenants of the Corporation with respect to the
Debt Securities of the series;
(15) whether any Debt Securities of the series are
issuable initially in temporary or permanent global form (with or
without coupons) and, if so (i) whether (and the circumstances
under which) beneficial owners of interests in permanent global
Debt Securities may exchange their interests for Debt Securities
of such series and of like tenor of any authorized form and
denomination, and (ii) the identity of any initial depositary for
such global Debt Securities;
(16) the date as of which any temporary global Debt
Security will be dated if other than the original issuance date
of the first Debt Security of that series to be issued;
(17) the Person to whom any interest on any Registered
Debt Securities of the series will be payable, if other than the
Registered Holder, and the extent to which and manner that any
interest payable on a temporary global Debt Security will be paid
if other than as specified in this Indenture;
(18) the form and/or terms of certificates, documents
or conditions, if any, for Debt Securities of the series to be
issuable in definitive form (whether upon original issue or upon
exchange of a temporary Debt Security of such series); and
(19) any other terms, conditions, rights and
preferences (or limitations on such rights and preferences)
relating to the series (which terms shall not be inconsistent
with the requirements of the Trust Indenture Act or with the
provisions of this Indenture).
All Debt Securities of any one series shall be
substantially identical except as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution
and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Debt Securities of any one
series need not be issued at the same time and, unless otherwise
provided, additional Debt Securities of such series may be
issued, with identical terms to those previously issued except
for the date of issuance thereof.
If any of the terms of a series of Debt Securities are
established in or pursuant to one or more Board Resolutions, a
copy of such Board Resolution shall be delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 302. Denominations. In the absence of any
specification pursuant to Section 301 with respect to Debt
Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of
$1,000 and any integral multiple thereof and shall be payable
only in Dollars.
SECTION 303. Execution, Authentication, Delivery and
Dating. (a) The Debt Securities of any series shall be executed
on behalf of the Company by its Chairman, a Vice Chairman, its
President or one of its Vice Presidents, under its corporate seal
reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers may
be manual or facsimile.
Debt Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt
Securities.
(b) At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver
Debt Securities of any series, executed by the Company, to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Debt Securities and the
Trustee in accordance with the Company Order shall authenticate
and deliver such Debt Securities. The Trustee shall be entitled
to receive, prior to the authentication and delivery of the first
Debt Securities of such series, the supplemental indenture or the
Board Resolution by or pursuant to which the form and terms of
such Debt Securities have been approved, an Officers' Certificate
stating that all conditions precedent provided for in this
Indenture relating to the issuance of the Debt Securities have
been complied with and as to the absence of any event that is, or
after notice or lapse of time or both would become, an Event of
Default and an Opinion of Counsel stating that:
(i) all instruments furnished by the Company to the
Trustee in connection with the authentication and delivery of
such Debt Securities conform to the requirements of this
Indenture and constitute sufficient authority hereunder for the
Trustee to authenticate and deliver such Debt Securities;
(ii) the forms and terms of such Debt Securities have
been established in conformity with the provisions of this
Indenture;
(iii) in the event that the forms or terms of such
Debt Securities have been established in a supplemental
indenture, the execution and delivery of such supplemental
indenture has been duly authorized by all necessary corporate
action of the Company, such supplemental indenture has been duly
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a valid
and binding obligation enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally
and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and subject to such other
exceptions as counsel shall request and as to which the Trustee
shall not reasonably object;
<PAGE>
(iv) the execution and delivery of such Debt
Securities have been duly authorized by all necessary corporate
action of the Company and such Debt Securities have been duly
executed by the Company, and, assuming due authentication by the
Trustee and delivery by the Company, are valid and binding
obligations enforceable against the Company in accordance with
their terms, entitled to the benefit of the Indenture, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law) and subject to
such other exceptions as counsel shall request and as to which
the Trustee shall not reasonably object; and
(v) the amount of Debt Securities Outstanding of such
series, together with the amount of such Debt Securities, does
not exceed any limit established under the terms of this
Indenture on the amount of Debt Securities of such series that
may be authenticated and delivered.
If all of the Debt Securities of a series are not to
be originally issued at the same time, then the Opinion of
Counsel, Officers' Certificate or any other documents required to
be delivered pursuant to this Section 303(b) need be delivered
only once, prior to the authentication and delivery of the first
Debt Security of such series; provided, however, that any
subsequent request by the Company to the Trustee to authenticate
Debt Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that, as
of the date of such request, the statements made in the Officers'
Certificate delivered pursuant to this Section 303(b) shall be
true and correct as if made on such date.
(c) If the Company shall establish pursuant to Section
301 that the Debt Securities of a series are to be issued in
whole or in part in the form of one or more Global Securities,
then the Company shall execute and the Trustee shall, upon
receipt by the Trustee of the Company Order authorizing such
authentication, authenticate and deliver one or more Global
Securities that (i) shall represent an aggregate amount equal to
the aggregate principal amount of the Outstanding Debt Securities
of such series to be represented by one or more Global
Securities, (ii) shall be registered, if in registered form, in
the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's
instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or
in part for the individual Debt Securities represented hereby,
this Global Security 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."
(d) Each Depositary designated pursuant to Section 301
for a Global Security in registered form must, at the time of its
designation and at all times while it serves as such Depositary,
be a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and any other applicable statute or
regulation.
<PAGE>
(e) The Trustee shall not be required to authenticate
any Debt Securities if the issuance of such Debt Securities
pursuant to this Indenture will adversely affect the Trustee's
own rights, duties or immunities under the Debt Securities and
this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
(f) Each Debt Security shall be dated the date of its
authentication, except as otherwise provided pursuant to Section
301 with respect to the Debt Securities of such series.
(g) No Debt Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose
unless there appears on such Debt Security a certificate of
authentication substantially in one of the forms provided for
herein duly executed by the Trustee or by an Authenticating Agent
by manual signature of one of its authorized officers, and such
certificate upon any Debt Security shall be conclusive evidence,
and the only evidence, that such Debt Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
SECTION 304. Temporary Debt Securities. Pending the
preparation of definitive Debt Securities of any series, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Debt Securities that are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the
tenor of the definitive Debt Securities in lieu of which they are
issued, in registered form, and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Debt Securities, may determine, as conclusively
evidenced by their execution of such Debt Securities. Any such
temporary Debt Security may be in global form, representing all
or a portion of the Outstanding Debt Securities of such series.
Every such temporary Debt Security shall be executed by the
Company and shall be authenticated and delivered by the Trustee
or the Authenticating Agent, as the case may be, upon the same
conditions and in substantially the same manner, and with the
same effect, as the definitive Debt Security or Securities in
lieu of which it is issued.
If temporary Debt Securities of any series are issued,
the Company will cause definitive Debt Securities of such series
to be prepared without unreasonable delay. After the preparation
of definitive Debt Securities of such series, the temporary Debt
Securities of such series shall be exchangeable for definitive
Debt Securities of such series upon surrender of the temporary
Debt Securities of such series at the office or agency of the
Company in a Place of Payment for such series, without charge to
the Holder. Except as provided in Section 305 in connection with
a transfer, and upon surrender for cancellation of any one or
more temporary Debt Securities of any series, the Company shall
execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt
Securities of the same series of authorized denominations and of
like tenor. Until so exchanged, temporary Debt Securities of any
series shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities of such
series.
Upon any exchange of a portion of a temporary Global
Security for a definitive Global Security or for the individual
Debt Securities represented thereby pursuant to this Section
<PAGE>
304 or Section 305, the temporary Global Security shall be
endorsed by the Trustee to reflect the reduction of the principal
amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by
the amount so exchanged and endorsed.
SECTION 305. Registration, Transfer and Exchange. (a)
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register for each series of Registered
Securities (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of
Registered Securities, transfers and exchanges of Registered
Securities and the address at which notice and demand to or upon
the Company in respect of this Indenture and the Debt Securities
may be served by the Holders of Debt Securities. Marine Midland
Bank is hereby appointed "Security Registrar" for the purpose of
registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided,
however, that the Company may appoint co-Security Registrars.
Such Security Register shall be in written form or in any other
form capable of being converted into written form within a
reasonable period of time. At all reasonable times the Security
Register shall be open for inspection by the Company or the
Trustee.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency of the
Company maintained for such purpose, the Company shall execute,
and the Trustee or any Authenticating Agent shall authenticate
and deliver, in the name of the designated transferee, one or
more new Registered Securities of the same series of any
authorized denomination or denominations of like tenor and
aggregate principal amount, bearing a number not
contemporaneously Outstanding and containing identical terms and
provisions.
Notwithstanding any other provision of this Section,
unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security
representing all or a portion of the Debt Securities of a series
may not be transferred except as a whole by the Depositary for
such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such
successor Depositary.
At the option of the Holder, Registered Securities of
any series (other than a Global Security, except as set forth
below) may be exchanged for other Registered Securities of the
same series of any authorized denomination or denominations of
like tenor and aggregate principal amount, containing identical
terms and conditions, upon surrender of the Registered Securities
to be exchanged at the office or agency of the Company maintained
for such purpose.
Whenever any Debt Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Debt Securities that the Holder
making the exchange is entitled to receive.
<PAGE>
(b) If at any time the Depositary for the Debt
Securities of a series notifies the Company that it is unwilling
or unable to continue as Depositary for the Debt Securities of
such series or if at any time the Depositary for the Debt
Securities of such series shall no longer be eligible under
Section 303(d), the Company shall appoint a successor Depositary
with respect to the Debt Securities of such series. If a
successor Depositary for the Debt Securities of such series is
not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Debt
Securities of such series, will authenticate and deliver,
individual Debt Securities of such series in an aggregate
principal amount equal to the principal amount of the Global
Security or Securities representing Debt Securities of such
series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that Debt Securities of any series issued in the form
of one or more Global Securities shall no longer be represented
by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Debt Securities
of such series, will authenticate and deliver, individual Debt
Securities of such series in an aggregate principal amount equal
to the principal amount of the Global Security or Securities
representing Debt Securities of such series in exchange for such
Global Security or Securities.
If specified by the Company pursuant to Section 301
with respect to a series of Debt Securities, the Depositary for
such series of Debt Securities may surrender a Global Security
for such series of Debt Securities in exchange in whole or in
part for individual Debt Securities of such series on such terms
as are acceptable to the Company and such Depositary. Thereupon,
the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to each Person specified by such Depositary a new
individual Debt Security or Securities of the same series, of any
authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Persons'
beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of individual Debt Securities
delivered to Holders thereof.
In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver individual Debt Securities in registered
form and in authorized denominations.
Upon the exchange of a Global Security for individual
Debt Securities, such Global Security shall be canceled by the
Trustee. Individual Registered Securities issued in exchange for
a Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its
direct
<PAGE>
or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Registered Securities to
the Persons in whose names such Registered Securities are so
registered.
(c) All Debt Securities issued upon any transfer or
exchange of Debt Securities shall be valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Debt Securities surrendered
for such transfer or exchange.
Every Registered Security presented or surrendered for
transfer or exchange shall (if so required by the Company, the
Trustee or the Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security
Registrar, duly executed, by the Holder thereof or his attorney
duly authorized in writing.
No service charge will be made for any transfer or
exchange of Debt Securities except as provided in Section 304 or
306. The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any registration, transfer or exchange of Debt
Securities, other than those expressly provided in this Indenture
to be made at the Company's own expense or without expense or
without charge to the Holders.
The Company, or the Trustee, as applicable, shall not
be required (i) to register, transfer or exchange Debt Securities
of any series during a period beginning at the opening of
business 15 days before the day of the transmission of a notice
of redemption of Debt Securities of such series selected for
redemption under Section 1303 and ending at the close of business
on the day of such transmission, or (ii) to register, transfer or
exchange any Debt Security so selected for redemption in whole or
in part, except the unredeemed portion of any Debt Security being
redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities. If (i) any mutilated Debt Security is
surrendered to the Trustee at its Corporate Trust Office or (ii)
the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt
Security, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save
each of them and any Paying Agent harmless, and neither the
Company nor the Trustee receives notice that such Debt Security
has been acquired by a bona fide purchaser, then the Company
shall execute and upon Company Request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Debt Security, a new Debt
Security of the same series of like tenor, form, terms and
principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen
Debt Security has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Debt
Security, pay the amount due on such Debt Security in accordance
with its terms.
Upon the issuance of any new Debt Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be
<PAGE>
imposed in respect thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
Every new Debt Security of any series, issued pursuant
to this Section 306 shall constitute an original additional
contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debt Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all
other Debt Securities of that series duly issued hereunder.
The provisions of this Section 306 are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved. (a) Interest on any Registered Security that is
payable and is punctually paid or duly provided for on any
Interest Payment Date shall be paid to the Person in whose name
such Registered Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such
Registered Security upon any transfer or exchange subsequent to
the Regular Record Date. Payment of interest on Registered
Securities shall be made at the Corporate Trust Office (except as
otherwise specified pursuant to Section 301) or, at the option of
the Company, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security
Register or, if provided pursuant to Section 301 and in
accordance with arrangements satisfactory to the Trustee, at the
option of the Registered Holder, by wire transfer to an account
designated by the Registered Holder.
(b) Any interest on any Debt Security of any series
that is payable but is not punctually paid or duly provided for
on any Interest Payment Date (herein called "Defaulted Interest")
shall, if such Debt Security is a Registered Security, forthwith
cease to be payable to the Registered Holder on the relevant
Regular Record Date by virtue of having been such a Registered
Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Registered Securities
(or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such
Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of
the proposed payment. TheTrustee shall promptly notify the
Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class postage prepaid, to the
Holders of such Registered Securities at their addresses as they
appear in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on Registered Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Registered Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(c) Subject to the foregoing provisions of this
Section 307, each Debt Security delivered under this Indenture
upon transfer of or in exchange for or in lieu of any other Debt
Security shall carry the rights to interest accrued and unpaid,
and to accrue, that were carried by such other Debt Security.
SECTION 308. Cancellation. Unless otherwise specified
pursuant to Section 301 for Debt Securities of any series, all
Debt Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Debt Securities previously
authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all Debt Securities so
delivered shall be promptly canceled by the Trustee. No Debt
Securities shall be authenticated in lieu of or in exchange for
any Debt Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled Debt
Securities held by the Trustee shall be returned to the Company.
The acquisition of any Debt Securities by the Company shall not
operate as a redemption or satisfaction of the indebtedness
represented thereby unless and until such Debt Securities are
surrendered to the Trustee for cancellation.
SECTION 309. Computation of Interest. Except as
otherwise specified pursuant to Section 301 for Debt Securities
of any series, interest on the Debt Securities of each series
shall be computed on the basis of a 360 day year of twelve 30 day
months.
SECTION 310. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers, (if then generally in use),
and, if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt
Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers
printed on the Debt Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers.
SECTION 311. Persons Deemed Owners. The Company, the
Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to
Section 307) interest, if any, on, such Registered Security and
for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice
to the contrary. All payments made to any Holder, or upon his
order, shall be valid, and, to the extent of the sum or sums
paid, effectual to satisfy and discharge the liability for moneys
payable upon such Debt Security.
None of the Company, 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 in a global Debt
Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any
global Debt Security, nothing herein shall prevent the Company,
the Trustee, or any agent of the Company or the Trustee, from
giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with
respect to such global Debt Security or impair, as between such
Depositary and owners of beneficial interests in such global Debt
Security, the operation of customary practices governing the
exercise of the rights of such Depositary (or its nominee) as
Holder of such global Debt Security.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Debt Securities of any series
(if all series issued under this Indenture are not to be
affected), shall, upon Company Order, cease to be of further
effect (except as to any surviving rights of registration of
transfer or exchange of such Debt Securities herein expressly
provided for and rights to receive payments of principal of (and
premium, if any) and interest on such Debt Securities) and the
Trustee, upon receipt of a Company Order and at the expense of
the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) Debt Securities of
such series that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 306 and (ii)
Debt Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the
<PAGE>
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1203) have been delivered to
the Trustee for cancellation; or
(B) all Debt Securities of such series 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) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Debt Securities
for principal (and premium, if any) and interest to the date of
such deposit (in the case of Debt Securities that have become due
and payable) or to the Stated Maturity or Redemption Date, as the
case may be; provided, however, in the event a petition for
relief under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy,
insolvency or other similar law, is filed with respect to the
Company within 91 days after the deposit and the Trustee is
required to return the moneys then on deposit with the Trustee to
the Company, the obligations of the Company under this Indenture
with respect to such Debt Securities shall not be deemed
terminated or discharged;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such
series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 607, the obligations of the Company to any Authenticating
Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this
Section 401, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1203 shall survive.
SECTION 402. Application of Trust Money. Subject to
Section 607 and the provisions of the last paragraph of Section
1203, all money deposited with the Trustee pursuant to Section
401 shall be held in trust and applied by it, in accordance with
the provisions of the Debt Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, or the principal (and
premium, if any) and interest for whose payment
<PAGE>
such money has been deposited with or received by the Trustee,
except that such money need not be segregated from other funds
except to the extent required by applicable law.
SECTION 403. Indemnity. The Company shall pay and
indemnify the Trustee and the Holders of Debt Securities of any
series as to which the Company's obligations under this Indenture
have terminated against any tax, fee or other charge resulting
from the deposit of cash in accordance with Section 401 and
termination of the Company's obligations under this Indenture
with respect to the Debt Securities of such series.
ARTICLE V
REMEDIES
SECTION 501. Events of Default. "Event of Default"
wherever used herein with respect to Debt 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, pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any
Debt Security of such series when it becomes 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 premium,
if any, on) any Debt Security of such series at its Maturity; or
(3) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than
a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or
which expressly has been included in this Indenture solely for
the benefit of Debt Securities of a series other than such
series) or established in or pursuant to the Board Resolution or
supplemental indenture, as the case may be, pursuant to which the
Debt Securities of such series were issued as contemplated by
Section 301, and continuance of such default or breach for a
period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Debt 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
(4) the entry of a decree or order for relief in
respect of the Company by a court having jurisdiction in the
premises in an involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or other similar law, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 90
consecutive days; or
<PAGE>
(5) the commencement by the Company of a voluntary
case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or the consent by it to the
entry of an order for relief in an involuntary case under any
such law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
its creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any action; or
(6) default under any bond, debenture, note, mortgage,
indenture, other instrument or other evidence of Indebtedness for
Money Borrowed in an aggregate principal amount exceeding
$5,000,000 by the Company or the Bank or its successors
(including a default with respect to Debt Securities of another
series) under the terms of the instrument or instruments by or
under which such indebtedness is evidenced, issued or secured,
which default results in the acceleration of such indebtedness,
if such acceleration is not rescinded or annulled, or such
indebtedness is not discharged, within 10 days after there shall
have been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Debt
Securities of that series a written notice specifying such
default and requiring the Company to cause such acceleration to
be rescinded or annulled or cause such indebtedness to be
discharged and stating that such notice is a "Notice of Default"
hereunder; or
(7) any other Event of Default provided with respect
to Debt Securities of that series pursuant to Section 301.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 25% in principal amount of Outstanding Debt Securities of
such series may declare the principal amount (or, if any Debt
Securities of such series are Discount Securities or Indexed
Securities, such portion of the principal amount of such Discount
Securities or Indexed Securities as may be specified in the terms
of such Discount Securities) of and all accrued but unpaid
interest on all the Debt Securities of such series to be due and
payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) and
interest shall become immediately due and payable. Upon payment
of such amounts, all obligations of the Company in respect of the
payment of principal of and interest on the Debt Securities of
such series shall terminate.
At any time after such a declaration of acceleration
with respect to Debt Securities of any series has been made and
before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article V
provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
<PAGE>
(A) all overdue installments of interest on all Debt Securities of
such series,
(B) the principal of (and premium, if any, on) any
Debt Securities of such series that have become due and payable
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Debt
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest on each
Debt Security at the rate or rates prescribed therefor in such
Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Debt
Securities of such series, other than the nonpayment of principal
of and interest on Debt Securities of such series that have
become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission and waiver shall affect any
subsequent default or impair any right consequent thereon.
For all purposes under this Indenture, if a portion of
the principal of any Discount Securities shall have been
accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless
such declaration has been rescinded and annulled, the principal
amount of such Discount Securities shall be deemed, for all
purposes hereunder, to be such portion of the principal thereof
as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due
and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Discount Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment
of interest on any Debt Security of any series when such interest
becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debt Security of any series at the
Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Debt Securities of such
series, the entire amount then due and payable on such Debt
Securities, for the principal (and premium, if any) and interest,
if any, and interest upon the overdue principal (and premium, if
any) and, to the extent that payment of such interest shall be
<PAGE>
legally enforceable, upon overdue installments of interest, at
the rate or rates prescribed therefor in such Debt Securities;
and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt
Securities of such series, and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Debt
Securities of such series wherever situated.
If an Event of Default with respect to Debt 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 Debt Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case
of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceedings, or any voluntary or involuntary
case under the Federal bankruptcy laws, as now or hereafter
constituted, relative to the Company or any other obligor
upon the Debt Securities, of a particular series or the property
of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or
by declaration of acceleration or otherwise; and irrespective of
whether the Trustee shall have made any demand on the Company for
the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Debt Securities of such series 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 and counsel) and of the Holders of
such Debt Securities allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any receiver, assignee, trustee, custodian, liquidator,
sequestrator (or other similar official) in any such proceeding
is hereby authorized by each such Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to
the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 607.
Nothing herein shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Debt Securities of such series or
the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Debt
Securities. All rights of action and claims under this Indenture
or the Debt Securities of any series may be prosecuted and
enforced by the Trustee without the possession of any of such
Debt Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name, as trustee of an
express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Debt Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article V 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 (and premium, if any) or interest, upon presentation
of the Debt Securities of any series in respect of which money
has been collected and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on the
Debt Securities of such series, in respect of which or for the
benefit of which such money has been collected ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Debt Securities for principal (and premium,
if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any
Debt Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to such
series;
<PAGE>
(2) the Holders of not less than 25% in principal
amount of the Outstanding Debt 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 the Trustee, in its reasonable
discretion, 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 Debt 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 to affect,
disturb or prejudice the rights of any other such Holders or of
the Holders of Outstanding Debt Securities of any other series,
or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders. For the protection
and enforcement of the provisions of this Section 507, each and
every Holder of Debt Securities of any series and the Trustee for
such series shall be entitled to such relief as can be given at
law or in equity.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other
provision in this Indenture, the Holder of any Debt Security
shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on the respective Stated
Maturity or Maturities expressed in such Debt Security (or, in
the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment and interest
thereon, and such right shall not be impaired without the consent
of such Holder.
SECTION 509. Restoration of Right and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and
in every such case the Company, the Trustee and the Holders
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 the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder 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 any acquiescence therein. Every right and remedy given
by this Indenture or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders. The Holders of not
less than a majority in principal amount of the Outstanding Debt
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 Debt Securities of
such series; provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 601, the
Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible
Officer or Responsible Officers of the Trustee, determine that
the proceeding so directed might result in personal liability or
would be unjustly prejudicial to the Holders of Debt Securities
of such series not joining in any such direction; and
(3) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such
direction.
SECTION 513. Waiver of Past Defaults. The Holders of
not less than a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series waive any past default
hereunder with respect to such series and its consequences,
except a default
(1) in the payment of the principal of (or premium, if any)
or interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof that
under Article XI cannot be modified or amended without the
consent of the Holder of each Outstanding Debt 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 the Debt Securities of
such series under this Indenture, but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
<PAGE>
SECTION 514. Undertaking for Costs. All parties to
this Indenture agree, and each Holder of any Debt 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, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant, but the
provisions of this Section 514 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder
or group of Holders holding in the aggregate more than 10% in
principal amount of the Outstanding Debt Securities of any
series, or to any suit instituted by any Holder of a Debt
Security for the enforcement of the payment of the principal of
(or premium, if any) or interest on such Debt Security on or
after the respective Stated Maturity or Maturities expressed in
such Debt Security (or, in the case of redemption, on or after
the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities. (a) With
respect to Debt Securities of any series, except during the
continuance of an Event of Default with respect to the Debt
Securities of such series,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon an
Officers' Certificate or Opinion of Counsel or any other
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of an
Officers' Certificate or Opinion of Counsel or any other such
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
<PAGE>
(b) In case an Event of Default with respect to Debt
Securities of any series has occurred and is continuing, the
Trustee shall, with respect to the Debt Securities of such
series, exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it, with
respect to Debt Securities of any series in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Debt Securities of such
series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Debt Securities of any such series;
and
(4) the Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 601.
SECTION 602. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to Debt
Securities, of any series, the Trustee shall by the pertinent
methods provided in Section 105 give notice to all Holders of
Debt Securities of such series of each default hereunder known to
the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of default in the
payment of the principal of (or premium, if any) or interest on
any Debt Security of such series, the Trustee shall be protected
in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the
interest of the Holders of Debt Securities of such series;
provided further that in the case of any default of the character
specified in Section 501(3) with respect to Debt Securities of
such series no such notice to Holders shall be given until at
least 60 days after the occurrence thereof and provided further
that the Trustee shall not be deemed to have knowledge of an
Event of Default unless either (A) a Responsible Officer of the
Trustee assigned to the Trustee's Corporate Trust Administration
Department shall have actual knowledge of such default or (B) the
Trustee shall have received written notice thereof from the
Company or from any Holder, or, with respect to Events of Default
pursuant to Section 501(6), from the holder of any indebtedness
referred to in Section 501(6) or from the trustee under any
mortgage, indenture or other instrument referred to in Section
501(6) . For the purpose of this Section, the term "default"
means any event that is, or after notice or lapse of time or both
would become, an Event of Default with respect to Debt Securities
of such series.
SECTION 603. Certain Rights of Trustee. Except as otherwise
provided in Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon
or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders of
Debt Securities of any series pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee, in its reasonable
discretion, against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, 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 the books, records and premises of the Company,
personally or by agent or attorney; and
<PAGE>
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred
upon it by this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance
of Debt Securities. The recitals contained herein and in the Debt
Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of
this Indenture, of the Debt Securities of any series or to any
prospectus relating to any series of Debt Securities. The Trustee
shall not be accountable for the use or application by the
Company of any Debt Securities or the proceeds thereof.
SECTION 605. May Hold Debt Securities. The Trustee,
any Paying Agent, the Security Registrar or any other agent of
the Company or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities,
and, subject to Sections 310(a)(5), 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust. Money held by the
Trustee or any Paying Agent (except the Company) in trust
hereunder need not be segregated from other funds except to the
extent required by law. Neither the Trustee nor any Paying Agent
shall be under any liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time such
compensation in Dollars for all services rendered by it hereunder
as may be mutually agreed upon in writing by the Company and the
Trustee (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust);
(2) to reimburse the Trustee in Dollars upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to
hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part; arising out of or in
<PAGE>
connection with the acceptance or administration of this trust or
performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers
or duties hereunder.
When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Sections
501(4) and 501(5), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or state bankruptcy, insolvency or
other similar laws.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Debt Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for
the payment of amounts due on the Debt Securities.
The obligations of the Company under this Section 607
to compensate and indemnify the Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness under this Indenture and shall survive the
satisfaction and discharge of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) The Trustee shall comply with TIA ss. 310(b); provided,
however, that there shall be excluded from the operation of TIA
ss. 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for
such exclusion set forth in TIA ss. 310(b)(1) are met.
(b) If Section 310(b) of the Trust Indenture Act is
amended at any time after the date of this Indenture to change
the circumstances under which a Trustee shall be deemed to have a
conflicting interest with respect to the Debt Securities of any
series or to change any of the definitions in connection
therewith, this Section 608 shall be automatically amended to
incorporate such changes.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that shall be a
corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or
State authority and having its Corporate Trust Office or an
agency in New York, New York; provided, however, that if Section
310(a) of the Trust Indenture Act or the rules and regulations of
the Commission under the Trust Indenture Act at any time permit a
corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified
under the Trust Indenture Act, this Section 609 shall be
automatically amended to permit a corporation organized and doing
business under the laws of any such other jurisdiction to serve
as Trustee hereunder. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this
<PAGE>
Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. The
Trustee shall comply with Section 310(a)(5) of the Trust
Indenture Act. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to
the Debt Securities of one or more series by giving written
notice thereof to the Company. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Debt Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Debt Securities of any series and a successor
Trustee appointed by Act of the Holders of a majority in
principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608(a) with respect to the Debt Securities of any series after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Debt Security of such series for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 with respect to the Debt Securities of any series and
shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Debt Security of such series for at least six months, or
(3) the Trustee shall become incapable of acting or a
decree or order for relief by a court having jurisdiction in the
premises shall have been entered in respect of the Trustee in an
involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law; or a decree or order by a
court having jurisdiction in the premises shall have been entered
for the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of
the Trustee or of its property or affairs, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation, winding
up or liquidation, or
(4) the Trustee shall commence a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or
similar law or shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Trustee
or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to
pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Debt Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide
Holder of a Debt Security of any 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 and the appointment of a successor Trustee for the
Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Debt Securities of one
or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to
the Debt Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to
the Debt 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
Debt Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Debt Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Debt Securities of such
series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to
the Debt Securities of any series shall have been so appointed by
the Company or the Holders of such series and accepted
appointment in the manner hereinafter provided, any Holder who
has been a bona fide Holder of a Debt Security of such series for
at least six months may, subject to Section 514, 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 Debt Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Debt
Securities of any series and each appointment of a successor
Trustee with respect to the Debt Securities of any series in the
manner and to the extent provided in Section 105 to the Holders
of Debt Securities of such series. Each notice shall include the
name of the successor Trustee with respect to the Debt Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor
Trustee with respect to all Debt Securities, each such successor
Trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties
<PAGE>
of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if
any, provided for Section 607.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Debt Securities of one or
more (but not all) series, the Company, the retiring Trustee and
each successor Trustee with respect to the Debt Securities of one
or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt
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 Debt 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 Debt 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 any such
supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of
a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder; provided that such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Debt 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 Debt Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been
authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of
the Company (or any other obligor upon the Debt Securities of a
series), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent. As
long as any Debt Securities of a series remain Outstanding, the
Trustee may, by an instrument in writing, appoint an
authenticating agent (the "Authenticating Agent") which shall be
authorized to act on behalf of the Trustee to authenticate Debt
Securities of each series issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 306. Debt
Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as
if authenticated by such Trustee. Wherever reference is made in
this Indenture to the authentication and delivery of Debt
Securities of any series by the Trustee for such series or to the
Trustee's Certificate of Authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee for such series by an Authenticating Agent for such
series and a Certificate of Authentication executed on behalf of
such Trustee by such Authenticating Agent. Such Authenticating
Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$10,000,000 (determined as provided in Section 609 with respect
to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any 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 any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business or
corporate trust business of any Authenticating Agent, shall
continue to the Authenticating Agent with respect to all series
of Debt Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act
on the part of the Trustee for such series or such Authenticating
Agent. Any Authenticating Agent may at any time, and if it shall
cease to be eligible shall, resign by giving written notice of
resignation to the applicable Trustee and to the Company.
Upon receiving such a notice of resignation, or in
case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section
614 with respect to one or more of all series of Debt Securities,
the Trustee for such series shall upon Company Request appoint a
successor Authenticating Agent, and the Company shall provide
notice of such appointment to all Holders of Debt Securities of
such series in the manner and to the extent provided in Section
105. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent.
The Company agrees to pay to the Authenticating Agent for such
series from time to time reasonable compensation including
reimbursement of its reasonable expenses for its services. The
Authenticating Agent for the Debt Securities of any series shall
have no responsibility or liability for any action taken by it as
such at the direction of the Trustee for such series.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders. The Company will furnish or cause to be
furnished to the Trustee with respect to Registered Securities of
each series for which it acts as Trustee:
(a) semiannually, not later than 15 days after the
Regular Record Date for interest for each series of Debt
Securities, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Registered Holders as
of Regular Record Date, respectively; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be
the Security Registrar, no such list need be furnished.
SECTION 702. Preservation of Information;
Communication to Holders. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as
to the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701,
received by it in the capacity of Paying Agent or Security
Registrar (if so acting) hereunder, and filed with it within the
two preceding years pursuant to Section 704(2).
The Trustee may destroy any list furnished to it as provided
in Section 701 upon receipt of a new list so furnished, destroy
any information received by it as Paying Agent or Security
Registrar (if so acting) hereunder upon delivering to itself as
Trustee, not earlier than 45 days after an Interest Payment Date,
a list containing the names and addresses of the Holders obtained
from such information since the delivery of the next previous
list, if any, destroy any list delivered to itself as Trustee
which was compiled from information received by it as Paying
Agent or Security Registrar (if so acting) hereunder upon the
receipt of a new list so delivered, and destroy not earlier than
two years after filing, any information filed with it pursuant to
Section 704(2).
(b) If three or more Holders (hereinafter referred to
as "applicants") apply in writing to the Trustee, and furnish to
the Trustee reasonable proof that each such applicant has owned a
Debt Security for a period of at least six months preceding the
date of such application, and such application states that the
applicants desire to communicate with other Holders of Debt
Securities of a particular series (in which case the applicants
must hold Debt Securities of such series) or with all Holders of
Debt Securities with respect to their rights under this Indenture
or under the Debt Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election
either:
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate
number of Holders of Debt Securities of such series or of all
Debt Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee in
accordance with Section 702(a), and as to the approximate cost of
mailing to such Holders the form of proxy, or other
communication, specified in such application.
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
written request of such applicants, mail to the Holders of Debt
Securities of such series or all Holders, as the case may be,
whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), a copy
of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of mailing, unless
within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the Holders of Debt Securities
of such series or all Holders, as the case may be, or would be in
violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining
one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise, the Trustee shall be
relieved of any obligation or duty to such applicants respecting
their application.
(c) Every Holder of Debt Securities, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any Paying Agent shall be
held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in
accordance with Section 702(b), 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 702(b).
SECTION 703. Reports by Trustee. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each
May 15 following the date of this Indenture deliver to Holders a
brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange, if any, upon which the Debt Securities are
listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed
on any stock exchange.
SECTION 704. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the
Company 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 Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company
is not required to file information, documents or reports
pursuant to either of said Sections, then it will 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, as amended, in respect of a
security listed and registered on a national securities exchange
as may be required 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 Company with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the
manner and to the extent provided in Section 703, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section 704 as
may be required by rules and regulations prescribed from time to
time by the Commission.
<PAGE>
ARTICLE VIII
CONCERNING THE HOLDERS
SECTION 801. Acts of Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by 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 or proxy duly appointed in writing, and, except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or
instruments. Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount
of the Outstanding Debt Securities of any series may take any
Act, the fact that the Holders of such specified percentage have
joined therein may be evidenced (a) by the instrument or
instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in
favor thereof at any meeting of such Holders duly called and held
in accordance with the provisions of Article IX, or (c) by a
combination of such instrument or instruments and any such record
of such a meeting of Holders.
SECTION 802. Proof of Ownership; Proof of Execution of
Instruments by Holders. The ownership of Registered Securities of
any series shall be proved by the Security Register for such
series or by a certificate of the Security Registrar for such
series.
Subject to the provisions of Sections 601, 603 and
905, proof of the execution of a writing appointing an agent or
proxy and of the execution of any instrument by a Holder or his
agent or proxy shall be sufficient and conclusive in favor of the
Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person
of any instrument may be proved by the certificate of any notary
public or other officer authorized to take acknowledgment of
deeds, that the person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation
or association or a member of a partnership on behalf of such
corporation, association or partnership, as the case may be, or
by any other person acting in a representative capacity, such
certificate or affidavit shall also constitute sufficient proof
of his authority.
The record of any Holders' meeting shall be proved in
the manner provided in Section 906.
The Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section so
long as the request is a reasonable one.
<PAGE>
If the Company shall solicit from the Holders of Debt
Securities of any series any Act, the Company may, at its option,
by Board Resolution, fix in advance a record date for the
determination of Holders of Registered Securities entitled to
take such Act, but the Company shall have no obligation to do so.
Such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the
date such solicitation is completed.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Debt Security
shall bind every future Holder of the same Debt Security and any
Debt Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything
done, suffered or omitted by the Trustee or any agent of the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Debt Security.
SECTION 803. Revocation of Consents; Future Holders
Bound. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 801, of the taking of any Act by
the Holders of the percentage in aggregate principal amount of
the Outstanding Debt Securities specified in this Indenture in
connection with such Act, any Holder of a Debt Security the
number, letter or other distinguishing symbol of which is shown
by the evidence to be included in the Debt Securities the Holders
of which have consented to such Act may, by filing written notice
with the Trustee at the Corporate Trust Office and upon proof of
ownership as provided in Section 802, revoke such Act so far as
it concerns such Debt Security. Except as aforesaid, any such Act
taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and upon all future Holders of such Debt
Security and of any Debt Securities issued on transfer or in lieu
thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such
Debt Security or such other Debt Securities.
ARTICLE IX
HOLDERS' MEETINGS
SECTION 901. Purposes of Meetings. A meeting of
Holders of any or all series may be called at any time and from
time to time pursuant to the provisions of this Article IX for
any of the following purposes:
(1) to give any notice to the Company or to the
Trustee for such series, or to give any directions to the Trustee
for such series, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action
authorized to be taken by Holders pursuant to any of the
provisions of Article V;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article VI;
<PAGE>
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 1102; or
(4) to take any other action authorized to be taken by
or on behalf of the Holders of any specified aggregate principal
amount of the Outstanding Debt Securities of any one or more or
all series, as the case may be, under any other provision of this
Indenture or under applicable law.
SECTION 902. Call of Meetings by Trustee. The Trustee
for any series may at any time call a meeting of Holders of such
series to take any action specified in Section 901, to be held at
such time or times and at such place or places as the Trustee for
such series shall determine. Notice of every meeting of the
Holders of any series, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at
such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 105. Such notice
shall be given not less than 20 days or more than 90 days prior
to the date fixed for the meeting.
SECTION 903. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in aggregate principal amount of
the Outstanding Debt Securities of a series or of all series, as
the case may be, shall have requested the Trustee for such series
to call a meeting of Holders of any or all such series by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such
request, then the Company or such Holders may determine the time
or times and the place or places for such meetings and may call
such meetings to take any action authorized in Section 901, by
giving notice thereof as provided in Section 902.
SECTION 904. Qualifications for Voting. To be entitled
to vote at any meeting of Holders of any series a Person shall be
(a) a Holder of a Debt Security of the series with respect to
which such meeting is being held or (b) a Person appointed by an
instrument in writing as agent or proxy by such Holder. The only
Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee
for the series with respect to which such meeting is being held
and its counsel and any representatives of the Company and its
counsel.
SECTION 905. Regulations. Notwithstanding any other
provisions of this Indenture, the Trustee for any series may make
such reasonable regulations as it may deem advisable for any
meeting of Holders of Debt Securities of such series, in regard
to proof of the holding of Debt 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.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders of such
series as provided in Section 903, in which case the Company or the Holders
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 a majority
vote of the meeting.
Subject to the provisos in the definition of
"Outstanding," at any meeting each Holder of a Debt Security of
the series with respect to which such meeting is being held or
proxy therefor shall be entitled to vote in such manner so that
whether the specified percentage required for any Act has been
voted may be calculated by the inspectors; provided, however,
that no vote shall be cast or counted at any meeting in respect
of any Debt 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 other than by virtue
of Outstanding Debt Securities of such series held by him or
instruments in writing duly designating him as the person to vote
on behalf of Holders of Debt Securities of such series. Any
meeting of Holders with respect to which a meeting was duly
called pursuant to the provisions of Section 902 or 903 may be
adjourned from time to time by a majority of such Holders present
and the meeting may be held as so adjourned without further
notice.
SECTION 906. Voting. The vote upon any resolution
submitted to any meeting of Holders with respect to which such
meeting is being held shall be by written ballots on which shall
be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the
Debt Securities 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 duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of
each meeting of Holders 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 transmitted as provided in Section
902. The record shall show the serial numbers of the Debt
Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 907. No Delay of Rights by Meeting. Nothing in
this Article Nine contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of
Holders or any rights expressly or impliedly conferred hereunder
to make such call, any hindrance or delay in the exercise of any
right or rights conferred upon or reserved to the Trustee or to
any Holder under any of the provisions of the Indenture or of the
Debt Securities of any series.
<PAGE>
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 1001. Company May Consolidate, etc., Only on
Certain Terms. The Company shall not consolidate with or merge
into any other corporation or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
unless:
(1) the corporation formed by such consolidation or
into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety (the
"successor corporation") shall be a corporation organized and
existing under the laws of the United States or any political
subdivision thereof and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest on all the
Debt Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such
transaction and treating any indebtedness that becomes an
obligation of the Company as a result of such transaction as
having been incurred by the Company at the time of such
transaction, no Event of Default, and no event that, after notice
or lapse of time, or both, would become an Event of Default,
shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance, transfer or lease, and
the assumption by any successor entity, and such supplemental
indenture comply with this Article X and that all conditions
precedent herein provided for relating to such transaction have
been complied with.
SECTION 1002. Successor Corporation Substituted. Upon
any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety in accordance with
Section 1001, the successor corporation formed by such
consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and
be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
corporation shall be relieved of all obligations and covenants
under this Indenture and the Debt Securities.
SECTION 1003. Opinion of Counsel. The Trustee shall be
entitled to receive and, subject to Sections 601 and 603, shall
be protected in relying upon an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance or
lease and any such assumption complies with the provisions of
this Article X.
<PAGE>
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures Without Consent
of Holders. Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another corporation
to the Company and the assumption by such successor of the
covenants of the Company herein and in the Debt Securities
contained; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Debt Securities
(and, if such covenants are to be for the benefit of less than
all such series, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and, if
such Events of Default are to be applicable to less than all
series of Debt Securities, stating that such Events of Default
are expressly being included solely to be applicable to such
series); or
(4) to change or eliminate any restrictions on the
payment of principal of (or premium, if any, on) Registered
Securities; provided that any such action shall not adversely
affect the interests of the Holders of Debt Securities of any
series in any material respect, or to permit or facilitate the
issuance of Debt Securities of any series in uncertificated form;
or
(5) to change or eliminate any of the provisions of
this Indenture; provided that any such change or elimination
shall become effective only when there is no Outstanding Debt
Security of any series created prior to the execution of such
supplemental indenture that is entitled to the benefit of such
provision and as to which such supplemental indenture would
apply; or
(6) to establish the form or terms of Debt Securities, if
any, of any series as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to one
or more series of Debt Securities and to add to or change any of
the provisions of this Indenture as shall be necessary for or
facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 611; or
(8) to evidence any changes to Section 608 or 609 permitted
by the terms thereof; or
(9) to add to or change or eliminate any provision of
this Indenture as shall be necessary or desirable in accordance
with any amendments to the Trust Indenture Act, provided
<PAGE>
such action shall not adversely affect the interests of the
Holders of the Debt Securities of any series in any material
respect; or
(10) to cure any ambiguity, to correct or supplement
any provision herein that 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 that
shall not be inconsistent with any provision of this Indenture,
provided such other provisions shall not adversely affect the
interests of the Holders of Outstanding Debt Securities of any
series created prior to the execution of such supplemental
indenture in any material respect.
SECTION 1102. 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 Debt Securities of each
series affected by such supplemental indenture voting separately,
by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders under
this Indenture of such Debt Securities; provided, however, that
no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Debt Security of each such series
affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Debt
Security, or reduce the principal amount thereof or the rate or
amount of interest thereon or any premium payable upon redemption
thereof, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or
the amount provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of any
Holder of any Debt Security, or change any Place of Payment
where, or the currency in which, any Debt Security or any premium
or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or in the case of redemption
or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose
Holders is required for any supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
or
(3) modify any of the provisions of this Section 1102,
Section 513 or Section 1205, 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 Debt Security affected thereby;
provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this
Section 1102 and Section 1205, or the deletion of this proviso,
in accordance with the requirements of Sections 611 and 1101(7).
<PAGE>
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
A supplemental indenture that changes or eliminates
any covenant or other provision of this Indenture with respect to
one or more particular series of Debt Securities or that modifies
the rights of the Holders of Debt 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 Debt
Securities of any other series.
SECTION 1103. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article XI or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture that adversely affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise in a material
way.
SECTION 1104. Effect of Supplemental Indentures. Upon
the execution of any supplemental indenture under this Article
XI, 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 Debt Securities theretofore
or thereafter authenticated and delivered hereunder shall be
bound thereby.
SECTION 1105. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article XI
shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 1106. Reference in Debt Securities to
Supplemental Indentures. Debt Securities of any series
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article XI may, and shall
if required by the Trustee, bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities
of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series.
SECTION 1107. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to Section 1102, the Company
shall transmit to the Holders of Debt Securities of any series
affected thereby a notice setting forth the substance of such
supplemental indenture.
<PAGE>
ARTICLE XII
COVENANTS
SECTION 1201. Payment of Principal, Premium and
Interest. The Company covenants and agrees for the benefit of
each series of Debt Securities that it will duly and punctually
pay the principal of (and premium, if any) and interest on the
Debt Securities in accordance with the terms of the Debt
Securities and this Indenture.
SECTION 1202. Maintenance of Office or Agency. The
Company will maintain in each Place of Payment for any series of
Debt Securities, an office or agency where Debt Securities of
such series may be presented or surrendered for payment, where
Debt Securities of such series may be surrendered for transfer or
exchange and where notices and demands to or upon the Company in
respect of the Debt Securities of such series and this Indenture
may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all presentations,
surrenders, notices and demands.
The Company may also from time to time designate
different or additional offices or agencies to be maintained for
such purposes (in or outside of such Place of Payment), and may
from time to time rescind any such designations; provided,
however, that no such designation or rescission shall in any
manner relieve the Company of its obligations described in the
preceding paragraph. The Company will give prompt written notice
to the Trustee of any such additional designation or rescission
of designation and any change in the location of any such
different or additional office or agency.
SECTION 1203. Money for Debt Securities; Payments To
Be Held in Trust. If the Company shall at any time act as its own
Paying Agent with respect to any series of Debt Securities, it
will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Debt Securities of
such series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying
Agents with respect to any series of Debt Securities it will,
prior to each due date of the principal (and premium, if any) or
interest on any Debt Securities of such series, deposit with any
such Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled thereto, and
(unless any such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
<PAGE>
The Company will cause each Paying Agent with respect
to any series of Debt 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 1203, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Debt 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 herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Debt Securities of such
series) in the making of any payment of principal of (and
premium, if any) or interest on the Debt 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 Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent, and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any Debt
Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company upon Company
Request, or (if then held by the Company) shall be discharged
from such trust, and the Holder of such Debt Security shall
thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent
before being required to make any such repayment, may at the
expense of the Company cause to be transmitted in the manner and
to the extent provided by Section 105, 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
notification, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1204. Officers' Certificate as to Default. The
Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company
(which on the date hereof is the calendar year) ending after the
date hereof, an Officers' Certificate (one of the signers of
which shall be the principal executive, principal financial or
principal accounting officer of the Company), stating whether or
not to the best knowledge of the signers thereof the Company is
in default in the performance and observation of any of the
terms, provisions and conditions of this Indenture, and, if the
Company shall be in default, specifying all
<PAGE>
such defaults and the nature thereof of which they may have
knowledge. Such compliance shall be determined without regard to
periods of grace or notice requirements.
The Company will deliver written notice to the Trustee
promptly after any officer of the Company has knowledge of the
occurrence of any event that with the giving of notice or the
lapse of time or both would become an Event of Default under
Section 501(3).
SECTION 1205. Waiver of Certain Covenants. The Company
may omit in any particular instance to comply, if so provided
pursuant to Section 301, with any covenant specified pursuant to
Section 301 with respect to the Debt Securities of any series if,
before the time for such compliance, the Holders of at least 66
2/3% in principal amount of the Outstanding Debt Securities of
such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such covenant, but no such waiver shall extend to or affect such
covenant except to the extent so expressly waived and, until such
waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such covenant shall
remain in full force and effect.
ARTICLE XIII
REDEMPTION OF DEBT SECURITIES
SECTION 1301. Applicability of Article. Debt
Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified pursuant to Section 301 for Debt
Securities of any series) in accordance with this Article XIII.
SECTION 1302. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities shall
be evidenced by a Board Resolution. In case of any redemption at
the election of the Company of less than all of the Debt
Securities of any series pursuant to Section 1303, the Company
shall, at least 60 days prior to the giving of the notice of
redemption in Section 1304 by the Company (unless a shorter
period shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date and of the principal amount of Debt
Securities of such series to be redeemed. In case of any
redemption at the election of the Company of all of the Debt
Securities of any series, the Company shall, at least 45 days
prior to the giving of the notice of redemption in Section 1304
by the Company (unless a shorter period shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date. In the
case of any redemption of Debt Securities prior to the expiration
of any restriction on such redemption provided in the terms of
such Debt Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restrictions.
SECTION 1303. Selection by Trustee of Debt Securities To Be
Redeemed. If less than all the Debt Securities of any series are
to be redeemed at the option of the Company, the particular Debt
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding
Debt Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral
multiple thereof) of the principal amount of Debt Securities of
such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series. In any case
where more than one Registered Security of such series is
registered in the same name, the Trustee in its discretion may
treat the aggregate principal amount so registered as if it were
represented by one Registered Security of such series.
The Trustee shall promptly notify the Company in
writing of the Debt Securities selected for redemption and, in
the case of any Debt 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
Debt Securities shall relate, in the case of any Debt Security
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debt Security that has been or is to be
redeemed.
SECTION 1304. Notice of Redemption. Notice of
redemption shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the
Company, not less than 30 days and not more than 60 days prior to
the Redemption Date, to the Holders of Debt Securities of any
series to be redeemed in whole or in part pursuant to this
Article XIII, in the manner provided in Section 105. Any notice
so given shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. Failure to give
such notice, or any defect in such notice to the Holder of any
Debt Security of a series designated for redemption, in whole or
in part, shall not affect the sufficiency of any notice of
redemption with respect to the Holder of any other Debt Security
of such series.
All notices of redemption shall identify the Debt
Securities to be redeemed (including CUSIP numbers) and shall
state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being
redeemed by the Company pursuant to provisions contained in this
Indenture or the terms of the Debt Securities of such series or a
supplemental indenture establishing such series, if such be the
case, together with a brief statement of the facts permitting
such redemption,
(4) if less than all Outstanding Debt Securities of
any series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Debt Securities to be redeemed,
<PAGE>
(5) that on the Redemption Date the Redemption Price
will become due and payable upon each such Debt Security to be
redeemed, and that interest thereon, if any, shall cease to
accrue on and after said date,
(6) the Place or Places of Payment where such Debt
Securities are to be surrendered for payment of the Redemption
Price,
(7) if any Debt Security of any series is to be
redeemed in part, that on and after the Redemption Date, upon
surrender of such Debt Security, a new Debt Security or Debt
Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued or, in the case of Debt
Securities providing appropriate space for such notation, at the
option of the Holders, the Trustee, in lieu of delivering a new
Debt Security or Debt Securities as aforesaid, may make a
notation on such Debt Security of the payment of the redeemed
portion thereof.
SECTION 1305. Deposit of Redemption Price. On or prior
to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust), in
immediately available funds, an amount of money in which the Debt
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Debt Securities of such
series) sufficient to pay on the Redemption Date the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Debt Securities or
portions thereof which are to be redeemed on that Date.
SECTION 1306. Debt Securities Payable on Redemption
Date. (a) Notice of redemption having been given as aforesaid,
any Debt Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price and from and
after such date (unless the Company shall default in the payment
of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption
in accordance with said notice, such Debt Security shall be paid
by the Company at the Redemption Price; provided, however, that
installments of interest that have a Stated Maturity on or prior
to the Redemption Date for such Debt Securities shall be payable
according to the terms of such Debt Securities and the provisions
of Section 307.
(b) If any Debt Security called for redemption shall
not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the
Debt Security.
SECTION 1307. Debt Securities Redeemed in Part. Any Debt
Security that is to be redeemed only in part shall be surrendered
at the Corporate Trust Office or such other office or agency of
the Company as is specified pursuant to Section 301 with, if the
Company, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing, and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Debt
Security without service charge, a new Debt Security or Debt
Securities of the same series, of like tenor and form, of any
authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed
portion of the principal of the Debt Security so surrendered;
except that if a Global Security is so surrendered, the Company
shall execute, and the Trustee shall authenticate and deliver to
the Depositary for such Global Security, without service charge,
a new Global Security in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global
Security so surrendered. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder
thereof, the Trustee, in lieu of delivering a new Debt Security
or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
ARTICLE XIV
DEFEASANCE
SECTION 1401. Applicability of Article. If, pursuant
to Section 301, provision is made for the defeasance of Debt
Securities of a series and if the Debt Securities of such series
are Registered Securities, then the provisions of this Article
XIV shall be applicable except as otherwise specified pursuant to
Section 301 for Debt Securities of such series.
SECTION 1402. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations. At the Company's option, either (a)
the Company shall be deemed to have been Discharged (as defined
below) from its obligations with respect to Debt Securities of
any series on the 91st day after the applicable conditions set
forth below have been satisfied or (b) the Company shall cease to
be under any obligation to comply with any term, provision or
condition set forth in Section 1001 with respect to Debt
Securities of any series (and, if so specified pursuant to
Section 301, any other restrictive covenant added for the benefit
of such series pursuant to Section 301) at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Debt Securities of such series
(i) money in an amount, or (ii) U.S. Government Obligations (as
defined below) that through the payment of interest and principal
in respect thereof in accordance with their terms will provide,
not later than one Business Day before the due date of any
payment, money in an amount or (iii) a combination of (i) and
(ii), sufficient, in the opinion (with respect to (ii) and (iii))
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge each installment of principal of
and premium, if any, and interest on, the Outstanding Debt
Securities of such series on the dates such installments of
interest or principal and premium are due;
(2) if the Debt Securities of such series are then listed on
the New York Stock Exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the
Company's exercise of its option under this Section would not
cause such Debt Securities to be delisted;
(3) no Event of Default or event (including such
deposit) that, with notice or lapse of time, or both, would
become an Event of Default with respect to the Debt Securities of
such series shall have occurred and be continuing on the date of
such deposit;
(4) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the Debt
Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of the Company's
exercise of its option under this Section and will be subject to
Federal income tax on the same amounts and in the same manner and
at the same times as would have been the case if such option had
not been exercised and, in the case of the Debt Securities of
such series being Discharged, accompanied by a ruling to that
effect received from or published by the Internal Revenue
Service; and
(5) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance under this
Section 1402 have been complied with and an Opinion of Counsel to
the effect that either (i) as a result of a deposit pursuant to
subsection (1) above and the related exercise of the Company's
option under this Section 1402, registration is not required
under the Investment Company Act of 1940, as amended, by the
Company with respect to the trust funds representing such deposit
or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
Notwithstanding any other provisions of this Section
1402, such defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to
Section 301.
"Discharged" means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by,
and obligations under, the Debt Securities of such series and to
have satisfied all the obligations under this Indenture relating
to the Debt Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments
acknowledging the same), except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund
described in clause (1) above, payment of the principal of (and
premium, if any) and interest on such Debt Securities when such
payments are due, (B) the Company's obligations with respect to
the Debt Securities of such series under Sections 304, 305, 306
and 1203 and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that
are (i) direct obligations of the United States for the payment
of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States the timely payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States, that, in either case under
clauses (i) or (ii), are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository
receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a
<PAGE>
specific payment of interest on or principal of any such U.S.
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 U.S. Government Obligation or the specific payment
of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
SECTION 1403. Deposited Moneys and U.S. Government
Obligations to be Held in Trust. All moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Section 1402
in respect of Debt Securities of a series shall be held in trust
and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of
such Debt Securities, of all sums due and to become due thereon
for principal (and premium, if any) and interest, if any, but
such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the Government Obligations deposited pursuant to Section
1403 or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Debt Securities.
SECTION 1404. Repayment to Company. The Trustee and
any Paying Agent shall promptly pay or return to the Company upon
Company Request any moneys or U.S. Government Obligations held by
them at any time which, in the opinion of a nationally recognized
firm of independent public accountants as set forth in a written
certification thereof delivered to the Trustee, are in excess of
the amount which would then be required to be deposited to effect
a defeasance in accordance with this Article XIV.
The provisions of the last paragraph of Section 1203
shall apply to any money held by the Trustee or any Paying Agent
under this Article XIV that remains unclaimed for two years after
the Maturity of any series of Debt Securities for which money or
U.S. Government Obligations have been deposited pursuant to
Section 1402.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
SEAL HSBC AMERICAS, INC.,
By: ___________________
Name:
Title:
Attest:____________________
Name:
Title:
SEAL BANKERS TRUST COMPANY, as Trustee,
By:__________________________
Name:
Title:
Attest:__________________
Name:
Title:
<PAGE>
STATE OF NEW YORK, )
COUNTY OF __________) ss.:
On the __ day of ___, 1996, before me personally came
__________________, to me known, who, being by me duly sworn, did
depose and say that he is the ________________ of HSBC Americas,
Inc., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
Notary Public
SEAL
STATE OF NEW YORK, )
COUNTY OF __________) ss.:
On the __ day of _____, 1996, before me personally
came ____________, to me known, who, being by me duly sworn, did
depose and say that he is an _______________ of Bankers Trust
Company, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
Notary Public
SEAL
<PAGE>
[Form of Subordinated Indenture]
HSBC AMERICAS, INC.
Issuer
TO
BANKERS TRUST COMPANY
Trustee
------------------------
INDENTURE
Dated as of October 24, 1996
-------------------------
SUBORDINATED DEBT SECURITIES
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of October 24, 1996
Trust Indenture Act Section Indenture Section
ss.310 (a)(1)........................ 609
(a)(2)......................... 609
(a)(3)......................... Not Applicable
(a)(4)......................... Not Applicable
(a)(5)......................... 609
(b)............................ 608
............................... 610
(c)............................ Not Applicable
ss.311 (a)....................... 613
(b)............................ 613
(c)............................ Not Applicable
ss.312 (a)....................... 701
702(a)
(b)............................ 702(b)
(c)............................ 702(c)
ss.313 (a)....................... 703
(b)............................ 703
(c)............................ 703
(d)............................ 703
ss.314 (a)....................... 704
(b)............................ Not Applicable
(c)(1)......................... 102
(c)(2)......................... 102
(c)(3)......................... Not Applicable
(d)............................ Not Applicable
(e)............................ 102
ss.315 (a)....................... 601(a)
601(c)
(b)............................ 602
703
(c)............................ 601(b)
(d)............................ 601(c)
(d)(1)......................... 601(a)
(d)(2)......................... 601(c)(2)
(d)(3)......................... 601(c)(3)
(e)............................ 514
ss.316 (a)....................... 101
(a)(1)(A)...................... 502
512
(a)(1)(B)...................... 513
(a)(2)......................... Not Applicable
(b)............................ 508
(c)............................ 508
ss.317 (a)(1).................... 503
(a)(2)......................... 504
(b)............................ 1203
ss.318 (a)....................... 106
---------------
Note: This reconciliation and tie shall not for any purpose, be deemed
to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
PARTIES...........................................................1
RECITALS..........................................................1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 101. DEFINITIONS..........................................1
Act.............................................................2
Affiliate.......................................................2
Authenticating Agent............................................2
Bank............................................................2
Board of Directors..............................................2
Board of Governors..............................................2
Board Resolution................................................2
Business Day....................................................2
Code............................................................2
Commission......................................................3
Company.........................................................3
Company Request and Company Order...............................3
Corporate Trust Office..........................................3
corporation.....................................................3
Debt Securities.................................................3
Default.........................................................3
Defaulted Interest..............................................3
Depositary......................................................3
Discharged......................................................3
Discount Security...............................................3
Dollar or $.....................................................4
Event of Default................................................4
Floating Rate Security..........................................4
Global Security.................................................4
Holder..........................................................4
Indebtedness for Money Borrowed.................................4
Indebtedness Ranking Junior to the Debt Securities..............4
Indebtedness Ranking on a Parity with the Debt Securities.......4
Indenture.......................................................5
Indexed Security................................................5
interest........................................................5
Interest Payment Date...........................................5
Maturity........................................................5
Officers' Certificate...........................................6
Opinion of Counsel..............................................6
Outstanding.....................................................6
Paying Agent....................................................7
Person..........................................................7
Place of Payment................................................7
Predecessor Security............................................7
Redemption Date.................................................7
Redemption Price................................................7
Registered Holder...............................................7
Registered Security.............................................7
Regular Record Date.............................................8
Repayment Date..................................................8
Responsible Officer.............................................8
Security Register and Security Registrar........................8
Senior Indebtedness.............................................8
Special Record Date.............................................8
Stated Maturity.................................................8
Subsidiary; voting stock........................................8
Trust Indenture Act or TIA......................................8
Trustee.........................................................9
U.S. Government Obligations.....................................9
United States...................................................9
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.................9
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...............9
SECTION 104. NOTICES, ETC. TO TRUSTEE AND COMPANY................10
SECTION 105. NOTICE TO HOLDERS; WAIVER...........................10
SECTION 106. CONFLICT WITH TRUST INDENTURE ACT...................11
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS............11
SECTION 108. SUCCESSORS AND ASSIGNS..............................11
SECTION 109. SEPARABILITY CLAUSE.................................11
SECTION 110. BENEFITS OF INDENTURE...............................11
SECTION 111. GOVERNING LAW.......................................11
SECTION 112. LEGAL HOLIDAYS......................................12
SECTION 113. NO SECURITY INTEREST CREATED........................12
SECTION 114. LIMITATION OF INDIVIDUAL LIABILITY..................12
ARTICLE II
DEBT SECURITY FORMS
SECTION 201. FORMS GENERALLY.....................................13
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.....13
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
BY AN AUTHENTICATING AGENT..........................14
SECTION 204. SECURITIES ISSUABLE IN GLOBAL FORM..................14
ARTICLE III
THE DEBT SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES................15
SECTION 302. DENOMINATIONS.......................................18
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING......18
SECTION 304. TEMPORARY DEBT SECURITIES...........................20
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE.................21
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES24
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED......24
SECTION 308. CANCELLA1TION........................................26
SECTION 309. COMPUTATION OF INTEREST.............................26
SECTION 310. CUSIP NUMBERS......................................26
SECTION 311. PERSONS DEEMED OWNERS..............................26
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.............27
SECTION 402. APPLICATION OF TRUST MONEY..........................28
SECTION 403. INDEMNITY...........................................28
SECTION 404. SUBORDINATION PROVISIONS INAPPLICABLE...............28
ARTICLE V
REMEDIES
SECTION 501. EVENTS OF DEFAULT...................................29
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..29
SECTION 503. DEFAULTS; COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE..............................31
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM....................32
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
DEBT SECURITIES.....................................33
SECTION 506. APPLICATION OF MONEY COLLECTED......................33
SECTION 507. LIMITATION ON SUITS.................................33
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST................................34
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES..................34
SECTION 510. RIGHT AND REMEDIES CUMULATIVE.......................35
SECTION 511. DELAY OR OMISSION NOT WAIVER........................35
SECTION 512. CONTROL BY HOLDERS..................................35
SECTION 513. WAIVER OF PAST DEFAULTS.............................35
SECTION 514. UNDERTAKING FOR COSTS...............................36
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS....................36
ARTICLE VI
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.................36
SECTION 602. NOTICE OF DEFAULTS..................................38
SECTION 603. CERTAIN RIGHTS OF TRUSTEE...........................38
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES..........................................39
SECTION 605. MAY HOLD DEBT SECURITIES............................39
SECTION 606. MONEY HELD IN TRUST.................................39
SECTION 607. COMPENSATION AND REIMBURSEMENT......................39
SECTION 608. DISQUALIFICATION, CONFLICTING INTERESTS.............40
SECTION 609. CORPORATE TRUSTEE REQUIRED, ELIGIBILITY.............41
SECTION 610. RESIGNATION AND REMOVAL, APPOINTMENT OF SUCCESSOR...41
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..............43
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS............................................44
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...44
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.................44
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.............................................46
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATION TO
HOLDERS.............................................46
SECTION 703. REPORTS BY TRUSTEE..................................47
SECTION 704. REPORTS BY COMPANY..................................48
ARTICLE VIII
CONCERNING THE HOLDERS
SECTION 801. ACTS OF HOLDERS.....................................48
SECTION 802. PROOF OF OWNERSHIP; PROOF OF EXECUTION OF
INSTRUMENTS BY HOLDERS..............................49
SECTION 803. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND........50
ARTICLE IX
HOLDERS' MEETINGS
SECTION 901. PURPOSES OF MEETINGS................................50
SECTION 902. CALL OF MEETINGS BY TRUSTEE.........................51
SECTION 903. CALL OF MEETINGS BY COMPANY OR HOLDERS..............51
SECTION 904. QUALIFICATIONS FOR VOTING...........................51
SECTION 905. REGULATIONS.........................................51
SECTION 906. VOTING..............................................52
SECTION 907. NO DELAY OF RIGHTS BY MEETING.......................52
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE
SECTION 1001. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS..............................................53
SECTION 1002. SUCCESSOR CORPORATION SUBSTITUTED..................53
SECTION 1003. OPINION OF COUNSEL.................................53
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 1101. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.54
SECTION 1102. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS....55
SECTION 1103. EXECUTION OF SUPPLEMENTAL INDENTURES...............56
SECTION 1104. EFFECT OF SUPPLEMENTAL INDENTURES..................56
SECTION 1105. CONFORMITY WITH TRUST INDENTURE ACT................56
SECTION 1106. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL
INDENTURES.........................................57
SECTION 1107. SUBORDINATION UNIMPAIRED..........................57
SECTION 1108. NOTICE OF SUPPLEMENTAL INDENTURE...................57
ARTICLE XII
COVENANTS
SECTION 1201. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.........57
SECTION 1202. MAINTENANCE OF OFFICE OR AGENCY....................57
SECTION 1203. MONEY FOR DEBT SECURITIES; PAYMENTS TO BE HELD IN
TRUST.............................................58
SECTION 1204. OFFICERS' CERTIFICATE AS TO DEFAULT................59
SECTION 1205. WAIVER OF CERTAIN COVENANTS.......................59
ARTICLE XIII
REDEMPTION OF DEBT SECURITIES
SECTION 1301. APPLICABILITY OF ARTICLE...........................60
SECTION 1302. ELECTION TO REDEEM; NOTICE TO TRUSTEE.............60
SECTION 1303. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE
REDEEMED...........................................60
SECTION 1304. NOTICE OF REDEMPTION...............................61
SECTION 1305. DEPOSIT OF REDEMPTION PRICE........................62
SECTION 1306. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.........62
SECTION 1307. DEBT SECURITIES REDEEMED IN PART...................62
ARTICLE XIV
DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE...........................63
SECTION 1402. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT
OBLIGATIONS........................................63
SECTION 1403. DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST...................................64
SECTION 1404. REPAYMENT TO COMPANY...............................65
SECTION 1405. SUBORDINATION PROVISIONS INAPPLICABLE..............65
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 1501. AGREEMENT TO SUBORDINATE..........................65
SECTION 1502. OBLIGATION OF THE COMPANY UNCONDITIONAL AND PAYMENT
PERMITTED IF NO DEFAULT...........................68
SECTION 1503. LIMITATIONS ON DUTIES TO HOLDERS OF SENIOR
INDEBTEDNESS......................................68
SECTION 1504. NOTICE TO TRUSTEE OF FACTS PROHIBITING PAYMENTS...68
SECTION 1505. APPLICATION BY TRUSTEE OF MONEYS DEPOSITED
WITH IT...........................................69
SECTION 1506. SUBROGATION.......................................69
SECTION 1507. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF BANK OR HOLDERS OF SENIOR
INDEBTEDNESS......................................69
SECTION 1508. AUTHORIZATION OF TRUSTEE TO EFFECTUATE
SUBORDINATION OF DEBT SECURITIES..................70
SECTION 1510. ARTICLE XV NOT TO PREVENT DEFAULTS (INCLUDING
EVENTS OF DEFAULT)................................70
SECTION 1511. ARTICLE APPLICABLE TO PAYING AGENTS...............70
TESTIMONIUM......................................................70
SIGNATURES AND SEALS.............................................71
ACKNOWLEDGMENTS..................................................72
<PAGE>
INDENTURE dated as of October 24, 1996, between HSBC
AMERICAS, INC., a Delaware corporation (hereinafter called the
"Company"), having its principal office at One Marine Midland
Center, Buffalo, New York 14203 and BANKERS TRUST COMPANY, a New
York banking corporation, as Trustee hereunder (hereinafter
called the "Trustee"), having its Corporate Trust Office at 4
Albany Street, 4th Floor, New York, New York 10006.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to
time for its lawful purposes subordinated debt securities (the
"Debt Securities") evidencing its indebtedness, and has duly
authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of the Debt
Securities, unlimited as to aggregate principal amount, to bear
interest at the rates or formulas, to mature at such times and to
have such other provisions as shall be fixed therefor and
hereinafter provided.
This Indenture is subject to the provisions of the
Trust Indenture Act of 1939, as amended, that are deemed to be
incorporated into this Indenture and shall, to the extent
applicable be governed by such provisions.
All things necessary have been done to make this
Indenture a valid agreement of the Company, in accordance with
its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Debt Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Debt Securities or of the Debt
Securities of any series, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article I have the
meanings assigned to them in this Article I, and include
the plural as well as the singular;
(2) all other terms used herein that 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
<PAGE>
otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the
United States at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article III or
Article VI, are defined in those respective Articles.
"Act" when used with respect to any Holder has the
meaning specified in Section 801.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" has the meaning specified in Section 614.
"Bank" means the Marine Midland Bank and any successor or
successors thereto.
"Board of Directors" means either the board of
directors of the Company, or the executive or any other committee
of that board duly authorized to act in respect hereof.
"Board of Governors" means the Board of Governors of the
Federal Reserve System.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" when used with respect to any Place of
Payment specified pursuant to Section 301 means any day that is
not a Saturday, a Sunday or a legal holiday or a day on which
banking institutions or trust companies in such Place of Payment
are authorized or obligated by law to close, except as otherwise
specified pursuant to Section 301.
"Code" means the Internal Revenue Code of 1986 as in effect on
the date hereof.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the
<PAGE>
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor
corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter '"Company" shall
mean such successor corporation.
"Company Request" and "Company Order" mean,
respectively, a written request or order signed in the name of
the Company by the Chairman, a Vice Chairman, the President or a
Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the
Company whether or not designated by a number or word or words
added before or after the title "Vice President"), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee.
"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 execution of this instrument is located at Four
Albany Street, New York, New York 10006.
The term "corporation" includes corporations,
associations, companies and business trusts.
"Debt Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Debt
Securities authenticated and delivered under this Indenture.
"Default" has the meaning specified in Section 503.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt
Securities of any series issuable in whole or in part in the form
of one or more Global Securities, the Person designated as
Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Debt
Securities of any such series shall mean the Depositary with
respect to the Debt Securities of that series.
"Discharged" has the meaning specified in Section 1402.
"Discount Security" means any Debt Security that is
issued with original issue discount" within the meaning of
Section 1273(a) of the Code and the regulations thereunder and
any other Debt Security designated by the Company as issued with
original issue discount for United States federal income tax
purposes.
<PAGE>
"Dollar" or "$" means such currency of the United States as
at the time of payment is legal tender for the payment of public
and private debts.
"Event of Default" has the meaning specified in Section 501.
"Floating Rate Security" means a Debt Security that
provides for the payment of interest at a variable rate
determined periodically by reference to an interest determination
method specified pursuant to Section 301.
"Global Security" means a Registered Security
evidencing all or part of a series of Debt Securities issued to
the Depositary for such series in accordance with Section 303 and
bearing the legend prescribed in Section 303(c).
"Holder" means, with respect to a Registered Security, the
Registered Holder.
"Indebtedness for Money Borrowed" means, when used
with respect to the Company or the Bank, (a) any obligation of,
or any obligation guaranteed by, the Company or the Bank, as the
case may be, for the repayment of borrowed money, whether or not
evidenced by bonds, debentures, notes or other written
instruments, (b) similar obligations arising from off- balance
sheet guarantees and direct credit substitutes, (c) obligations
associated with derivative products such as interest rate and
foreign exchange rate contracts, commodity contracts and similar
arrangements and (d) any deferred obligations for the payment of
the purchase price of property or assets.
"Indebtedness Ranking Junior to the Debt Securities"
means any Indebtedness for Money Borrowed of the Company, whether
outstanding on the date of 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 the
Debt Securities (and any other Indebtedness Ranking on a Parity
with the Debt Securities) in right of payment upon the happening
of any event of the kind specified in the first sentence of the
second paragraph of Section 1501.
"Indebtedness Ranking on a Parity with the Debt
Securities" means (i) Indebtedness for Money Borrowed of the
Company, whether outstanding on the date of execution of the
Indenture or thereafter created, assumed or incurred, which
specifically by its terms ranks equally with and not prior to the
Debt Securities in the right of payment upon the happening of any
event of the kind specified in the first sentence of the second
paragraph of Section 1501, and (ii) the Company's 8 5/8%
Subordinated Capital Notes due March 1997 issued under an
indenture dated March 1, 1987 between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank), as trustee, the
Company's Floating Rate Subordinated Capital Notes due March
1999, issued under an indenture dated as of April 1, 1987 between
the Company and The Chase Manhattan Bank (formerly known as
Chemical Bank) as trustee, the Company's Floating Rate
Subordinated Notes due December 2000, issued under an indenture
dated December 12, 1985 between the Company and The Chase
Manhattan Bank (formerly known as The Chase Manhattan Bank,
National Association) as trustee, and the Company's
<PAGE>
Floating Rate Subordinated Notes due December 2009 issued under
an indenture dated December 15, 1984 between the Company and The
Chase Manhattan Bank (formerly known as The Chase Manhattan Bank,
National Association) as trustee (all of which notes and
debentures shall rank on a parity with the Debt Securities). For
the purposes of the indentures listed in this Section, the Debt
Securities shall not constitute Senior Indebtedness as defined
therein.
The securing of any Indebtedness for Money Borrowed of
the Company otherwise constituting Indebtedness Ranking on a
Parity with the Debt Securities or Indebtedness Ranking Junior to
the Debt Securities, as the case may be, shall not be deemed to
prevent such Indebtedness for Money Borrowed from constituting
Indebtedness Ranking on a Parity with the Debt Securities or
Indebtedness Ranking Junior to the Debt Securities.
"Indenture" means this instrument as originally
executed, or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, unless the
context otherwise requires, shall include the terms of a
particular series of Debt Securities as established pursuant to
Section 301.
"Indexed Security" means a Debt Security the terms of
which provided that the principal amount thereof payable at
Stated Maturity may be more or less than the principal face
amount thereof at original issuance.
The term "interest" when used with respect to a
Discount Security which by its terms bears interest only after
Maturity means interest payable after Maturity.
"Interest Payment Date" with respect to any Debt
Security means the Stated Maturity of an installment of interest
on such Debt Security; provided, however, that, unless otherwise
provided as contemplated by Section 301 with respect to the Debt
Securities of any series, if the Company does not pay any
installment of interest on the pertinent Interest Payment Date,
the obligation to make such payment and such Interest Payment
Date shall be deferred until the date upon which a dividend is
paid on any class of share capital of the Company (it being
understood for the avoidance of doubt that any such deferral
shall take place only once with respect to any payment of
interest).
"Maturity" when used with respect to any Debt Security
means the date on which the principal of such Debt Security
becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for
redemption, repayment at the option of the Holder thereof or
otherwise; provided, however, that, unless otherwise provided as
contemplated by Section 301 with respect to the Debt Securities
of any series, if the Company does not pay all or any part of the
principal at Maturity, the obligation to make such payment and
Maturity shall be deferred until the first Business Day after the
date that falls six months after the original Maturity (it being
understood for the avoidance of doubt that any such deferral
shall take place only once with respect to any payment of
principal).
<PAGE>
"Officers' Certificate" means a certificate signed by the
Chairman, a Vice Chairman, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel to the Company and who shall be
satisfactory to the Trustee, that is delivered to the Trustee.
"Outstanding" when used with respect to Debt
Securities means, as of the date of determination, all Debt
Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Debt Securities theretofore
canceled by the Trustee or delivered to the Trustee
for cancellation;
(ii) Debt Securities or portions thereof for whose
payment or redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Debt
Securities or from its obligations with respect to which
the Company shall have been Discharged; provided, however,
that if such Debt Securities or portions thereof are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Debt Securities that have been paid pursuant to
Section 306 or in exchange for, or in lieu of, other Debt
Securities which have been authenticated and delivered
pursuant to this Indenture, other than any such Debt
Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Debt Securities are held by a bona fide purchaser in whose
hands such Debt Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Debt Securities Outstanding have
performed any Act hereunder, Debt Securities owned by the Company
or any other obligor upon the Debt Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such Act, only
Debt Securities that the Trustee knows to be so owned shall be so
disregarded. Debt Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right to act with respect to such Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have performed
any Act hereunder, (i) the principal amount of a Discount
Security that shall be deemed to be Outstanding for such purpose
shall be the amount of the principal thereof that would be due
and payable as of the date
<PAGE>
of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 and (ii) the principal
amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Indexed Security pursuant
to Section 301.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any) or interest
on any Debt Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, association, joint stock company,
trust, estate, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the
principal of (and premium, if any) and interest on the Debt
Securities of that series are payable as specified pursuant to
Section 301.
"Predecessor Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of
the same debt as that evidenced by such particular Debt Security,
and, for the purposes of this definition, any Debt Security
authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debt Security.
"Redemption Date" means the date fixed for redemption
of any Debt Security pursuant to this Indenture which, in the
case of a Floating Rate Security, unless otherwise specified
pursuant to Section 301, shall be an Interest Payment Date only.
"Redemption Price" means, in the case of a Discount
Security, the amount of the principal thereof that would be due
and payable as of the Redemption Date upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 and,
in the case of any other Debt Security, the principal amount
thereof, plus, in each case, premium, if any, and accrued and
unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security
registered as to principal, premium, if any, and interest in the
Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date
means the date specified for that purpose pursuant to Section 301
for such interest Payment Date.
<PAGE>
"Repayment Date" means, when used with respect to any Debt
Security to be repaid at the option of the Holder, the date fixed
for such repayment by or pursuant to this Indenture.
"Responsible Officer" when used with respect to the
Trustee means any officer within the Corporate Trust and Agency
Group (or any successor group of the Trustee), including any vice
president, assistant vice president, assistant secretary, or
other trust officer or assistant officer of the Trustee
customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the
Trustee's Corporate Trust Office because of his knowledge of and
familiarity with the particular subject.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305(a).
"Senior Indebtedness" means all Indebtedness for Money
Borrowed of the Company, whether outstanding on the date or
execution of the Indenture or thereafter created, assumed or
incurred, except Indebtedness Ranking on a Parity with the Debt
Securities and any deferrals, renewals or extensions of such
Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity" when used with respect to any Debt
Security or any installment of principal thereof or premium
thereon or interest thereon means the date specified in such Debt
Security as the date on which the principal of such Debt Security
or such installment of principal, premium or interest is due and
payable.
"Subsidiary" means a corporation, limited liability
company, partnership or other entity, at least a majority of the
outstanding voting stock, membership interests or partnership
interests, as the case may be, of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock having
voting power for the election of directors, whether at all times
or only for so long as no senior class of stock has such voting
power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust
Indenture Act of 1939 as in force at the date as of which this
instrument was executed, except as provided in Section 1105.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
<PAGE>
respect to the Debt Securities of any series shall mean the
Trustee with respect to Debt Securities of such series.
"U.S. Government Obligations" has the meaning specified in
Section 1402.
"United States" means the United States of America
(including the States and the District of Columbia), its
territories and its possessions.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, 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 is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation
as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters,
upon an Opinion of Counsel, or a certificate or representations
by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the
<PAGE>
certificate or representations or Opinion of Counsel with respect
to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or representation or Opinion of
Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information
with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 104. Notices, etc. to Trustee and Company. Any Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or
filed in writing to or with the Trustee at its Corporate
Trust Office, 4 Albany Street, 4th Floor, New York, New
York 10006 ((fax) 212-250-6392); or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first
class postage prepaid, to the Company addressed to it at
the address of its principal office specified in the first
paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the
Company.
Any such Act or other document shall be in the English
language.
SECTION 105. Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event by the
Company or the Trustee, such notice shall be sufficiently given
to Registered Holders (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid,
to such Registered Holders as their names and addresses appear in
the Security Register, within the time prescribed; provided,
however, that, in any case, any notice to Holders of Floating
Rate Securities regarding the determination of a periodic rate of
interest, if such notice is required pursuant to Section 301,
shall be sufficiently given if given in the manner specified
pursuant to Section 301. In any case where notice to Registered
Holders is given by mail, neither the failure to mail such notice
nor any defect in any notice so mailed to any particular
Registered Holder shall affect the sufficiency of such notice
with respect to other Registered Holders, and any notice that is
mailed in the manner herein provided shall be conclusively deemed
to have been received by such Registered Holder, whether or not
such Registered Holder actually receives such notice.
<PAGE>
In the event of suspension of regular mail service or by
reason of any other cause it shall be impracticable to give
notice by mail, then such notification as shall be given with the
approval of the Trustee shall constitute sufficient notice for
every purpose hereunder.
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 Registered Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance on such waiver.
SECTION 106. Conflict with Trust Indenture Act. If and
to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or another
provision (an "incorporated version") included in this Indenture
by operation of, Sections 310 to 318, inclusive, of the Trust
Indenture Act, such imposed duties or incorporated provision
shall control.
SECTION 107. 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 108. Successors and Assigns. All covenants and
agreements in this Indenture by the parties hereto shall bind
their respective successors and assigns and inure to the benefit
of their permitted successors and assigns, whether so expressed
or not.
SECTION 109. Separability Clause. In case any
provision in this Indenture or in the Debt Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this
Indenture or in the Debt Securities, express or implied, shall
give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their
respective successors hereunder, the Holders and the holders of
Senior indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 111. Governing Law. THIS INDENTURE AND THE
DEBT SECURITIES SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID
STATE.
SECTION 112. Legal Holidays. Unless otherwise specified
pursuant to Section 301, in any case where any Interest Payment
Date, Redemption Date or Maturity of any Debt Security of any
series shall not be a Business Day at any Place of Payment for
the Debt Securities
<PAGE>
of that series, then (notwithstanding any other provision of this
Indenture or of the Debt Securities) payment of principal (and
premium, if any) or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and
effect as if made on such Interest Payment Date, Redemption Date
or Maturity, and no interest shall accrue on such payment for the
period from and after such Interest Payment Date, Redemption Date
or Maturity, as the case may be, to such Business Day if such
payment is made or duly provided for on such Business Day.
SECTION 113. No Security Interest Created. Nothing in
this Indenture or in the Debt Securities, express or implied,
shall be construed to constitute a security interest in favor of
the Registered Holders under the Uniform Commercial Code or
similar legislation, as now or hereafter enacted and in effect in
any jurisdiction where property of the Company or its
Subsidiaries is or may be located.
SECTION 114. Limitation of Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Debt Security because of
any indebtedness evidenced thereby, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor corporation,
either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or by any legal or equitable proceeding
or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or
any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in
this Indenture or in any Debt Security or implied therefrom; and
that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any Debt Security
or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debt Security.
ARTICLE II
DEBT SECURITY FORMS
SECTION 201. Forms Generally. The Debt Securities of
each series shall be substantially in one of the forms
established in or pursuant to a Board Resolution and set forth in
an Officers' Certificate, or one or more indentures supplemental
hereto, and shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture or any indenture supplemental hereto, and may
have such letters, numbers or
<PAGE>
other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which any series of the
Debt Securities may be listed or of any automated quotation
system on which any such series may be quoted, or to conform to
usage, all as determined by the officers executing such Debt
Securities as conclusively evidenced by their execution of such
Debt Securities. If the form of a series of Debt Securities is
established in or pursuant to a Board Resolution, a copy of such
Board Resolution shall be delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the form
of such series.
The definitive Debt Securities, if any, of each series
shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be
produced in any other manner, provided that such manner is
permitted by the rules of any securities exchange on which such
series of Debt Securities may be listed or of any automated
quotation system on which such series may be quoted, all as
determined by the officers executing such Debt Securities, as
conclusively evidenced by their execution of such Debt
Securities.
SECTION 202. Form of Trustee's Certificate of
Authentication. The form of the Trustee's certificate of
authentication to be borne by the Debt Securities shall be
substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series
designated therein issued under the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By............................................
Authorized Signatory
SECTION 203. Form of Trustee's Certificate of
Authentication by an Authenticating Agent. If at any time there
shall be an Authenticating Agent appointed with respect to any
series of Debt Securities, then the Trustee's Certificate of
Authentication by such Authenticating Agent to be borne by Debt
Securities of each such series shall be substantially as follows:
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series
designated therein issued under the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By............................................
Authenticating Agent
By............................................
Authorized Signatory
SECTION 204. Securities Issuable in Global Form. If
Debt Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then,
notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified
therein and may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time
endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any
endorsement of a Debt Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons
as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or 304. 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 instructions given by the
Person or Persons specified therein or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of
a Debt Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion
of Counsel.
The provisions of the last sentence of Section 303
shall apply to any Debt Security represented by a Debt Security
in global form if such Debt Security was never issued and sold by
the Company and the Company delivers to the Trustee the Debt
Security in global form together with written instructions (which
need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) with regard to the reduction in the
principal amount of Debt Securities represented thereby, together
with the written statement contemplated by the last sentence of
Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of
principal of any premium and interest on any Debt Security in
permanent global form shall be made to the Person or Persons
specified therein.
<PAGE>
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities
represented by a permanent global Security in registered form,
the Holder of such permanent global Security in registered form.
ARTICLE III
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Debt Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more
series. There shall be established in or pursuant to one or more
Board Resolutions, and, subject to Section 303, set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of
any series any or all of the following, as applicable:
(1) the title of the Debt Securities of the series
(which shall distinguish the Debt Securities of such series
from all other series of Debt Securities);
(2) the limit, if any, upon the aggregate principal
amount of the Debt Securities of the series that may be
authenticated and delivered under this Indenture (except
for Debt Securities authenticated and delivered upon
transfer of, or in exchange for, or in lieu of, other Debt
Securities of such series pursuant to Section 304, 305,
306, 1106 or 1307);
(3) the dates on which or periods during which the
Debt Securities of the series may be issued, and the dates
on, or the range of dates within, which the principal of
(and premium, if any, on) the Debt Securities of such
series are or may be payable;
(4) the rate or rates or the method of determination
thereof at which the Debt Securities of the series shall
bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which
such interest shall be payable, and, in the case of
Registered Securities, the Regular Record Dates for the
interest payable on such Interest Payment Dates;
(5) the date or dates on which such interest, if any,
on the Debt Securities of the series will be payable and
the regular record date, if any, for such Interest Payment
Dates or the method by which such date or dates will be
determined;
(6) the places, if any, in addition to or instead of
the Corporate Trust Office of the Trustee, where (i) the
principal of and premium, if any, and any interest on the
Debt Securities of the series will be payable, (ii) Debt
Securities of the series may be surrendered
for registration of transfer, (iii) Debt
Securities of the series may be surrendered for exchange
and (iv) notices to or upon the Company in respect of the
Debt Securities of the series and this Indenture may be
served;
(7) the periods within which or the dates on which,
the prices at which and the terms and conditions upon which
Debt Securities of the series may be redeemed, if any, in
whole or in part, at the option of the Company or
otherwise;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
individual Debt Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount, the portion
of the principal amount (or the method by which such
portion will be determined) of Debt Securities of the
series that will be payable upon declaration of
acceleration of the Maturity thereof;
(11) any index, formula or other method (including a
method based on changes in the prices of particular
securities, currencies, intangibles, goods, articles or
commodities) used to determine the amount of payments of
principal of and premium, if any, and any interest on the
Debt Securities of the series;
(12) whether provisions relating to defeasance and
covenant defeasance will be applicable to such series of
Debt Securities of the series;
(13) any provisions granting special rights to Holders of
Debt Securities of the series upon the occurrence of specified
events;
(14) any modifications, deletions or additions to the
Defaults or covenants of the Corporation with respect to the Debt
Securities of the series;
(15) whether any Debt Securities of the series are
issuable initially in temporary or permanent global form
(with or without coupons) and, if so (i) whether (and the
circumstances under which) beneficial owners of interests
in permanent global Debt Securities may exchange their
interests for Debt Securities of such series and of like
tenor of any authorized form and denomination, and (ii) the
identity of any initial depositary for such global Debt
Securities;
(16) the date as of which any temporary global Debt
Security will be dated if other than the original issuance
date of the first Debt Security of that series to be
issued;
<PAGE>
(17) the Person to whom any interest on any Registered Debt
Securities of the series will be payable, if other than the
Registered Holder, and the extent to which and manner that
any interest payable on a temporary global Debt Security
will be paid if other than as specified in this Indenture;
(18) the form and/or terms of certificates, documents
or conditions, if any, for Debt Securities of the series to
be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Debt Security of such
Series); and
(19) any other terms, conditions, rights and
preferences (or limitations on such rights and preferences)
relating to the series (which terms shall not be
inconsistent with the requirements of the Trust Indenture
Act or with the provisions of this Indenture).
All Debt Securities of any one series shall be
substantially identical except as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution
and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Debt Securities of any one
series need not be issued at the same time and, unless otherwise
provided, additional Debt Securities of such series may be
issued, with identical terms to those previously issued except
for the date of issuance thereof.
If any of the terms of a series of Debt Securities are
established in or pursuant to one or more Board Resolutions, a
copy of such Board Resolution shall be delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 302. Denominations. In the absence of any
specification pursuant to Section 301 with respect to Debt
Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations
of $1,000 and any integral multiple thereof and shall be payable
only in Dollars.
SECTION 303. Execution, Authentication, Delivery and
Dating. (a) The Debt Securities of any series shall be executed
on behalf of the Company by its Chairman, a Vice Chairman, its
President or one of its Vice Presidents, under its corporate seal
reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers may
be manual or facsimile.
Debt Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt
Securities.
(b) At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver
Debt Securities of any series, executed by the Company, to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Debt Securities and the
Trustee in accordance with the Company Order shall authenticate
<PAGE>
and deliver such Debt Securities. The Trustee shall be entitled
to receive, prior to the authentication and delivery of the first
Debt Securities of such series, the supplemental indenture or the
Board Resolution by or pursuant to which the form and terms of
such Debt Securities have been approved, an Officers' Certificate
stating that all conditions precedent provided for in this
Indenture relating to the issuance of the Debt Securities have
been complied with and as to the absence of any event that is, or
after notice or lapse of time or both would become, a Default and
an Opinion of Counsel stating that:
(1) all instruments furnished by the Company to the
Trustee in connection with the authentication and delivery
of such Debt Securities conform to the requirements of this
Indenture and constitute sufficient authority hereunder for
the Trustee to authenticate and deliver such Debt
Securities;
(2) the forms and terms of such Debt Securities have
been established in conformity with the provisions of this
Indenture;
(3) in the event that the forms or terms of such Debt
Securities have been established in a supplemental
indenture, the execution and delivery of such supplemental
indenture has been duly authorized by all necessary
corporate action of the Company, such supplemental
indenture has been duly executed and delivered by the
Company and, assuming due authorization, execution and
delivery by the Trustee, is a valid and binding obligation
enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and subject to such other
exceptions as counsel shall request and as to which the
Trustee shall not reasonably object;
(4) the execution and delivery of such Debt Securities
have been duly authorized by all necessary corporate action
of the Company and such Debt Securities have been duly
executed by the Company, and, assuming due authentication
by the Trustee and delivery by the Company, are valid and
binding obligations enforceable against the Company in
accordance with their terms, entitled to the benefit of the
Indenture, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and subject to such other
exceptions as counsel shall request and as to which the
Trustee shall not reasonably object; and
(5) the amount of Debt Securities Outstanding of such
series, together with the amount of such Debt Securities,
does not exceed any limit established under the terms of
this Indenture on the amount of Debt Securities of such
series that may be authenticated and delivered.
If all of the Debt Securities of a series are not to
be originally issued at the same time, then the Opinion of
Counsel, Officers' Certificate or other documents required to be
<PAGE>
delivered pursuant to this Section 303(b) need be delivered only
once, prior to the authentication and delivery of the first Debt
Security of such series; provided, however, that any subsequent
request by the Company to the Trustee to authenticate Debt
Securities of such series upon original issuance shall constitute
a representation and warranty by the Company that, as of the date
of such request, the statements made in the Officers' Certificate
delivered pursuant to this Section 303(b) shall be true and
correct as if made on such date.
(c) If the Company shall establish pursuant to Section
301 that the Debt Securities of a series are to be issued in
whole or in part in the form of one or more Global Securities,
then the Company shall execute and the Trustee shall, upon
receipt by the Trustee of the Company Order authorizing such
authentication, authenticate and deliver one or more Global
Securities that (i) shall represent an aggregate amount equal to
the aggregate principal amount of the Outstanding Debt Securities
of such series to be represented by one or more Global
Securities, (ii) shall be registered, if in registered form, in
the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's
instruction and (iv) shall bear a legend substantially to the
following effect "Unless and until it is exchanged in whole or in
part for the individual Debt Securities represented hereby, this
Global Security 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."
(d) Each Depositary designated pursuant to Section 301
for a Global Security in registered form must, at the time of its
designation and at all times while it serves as such Depositary,
be a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and any other applicable statute or
regulation.
(e) The Trustee shall not be required to authenticate
any Debt Securities if the issuance of such Debt Securities
pursuant to this Indenture will adversely affect the Trustee's
own rights, duties or immunities under the Debt Securities and
this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
(f) Each Debt Security shall be dated the date of its
authentication, except as otherwise provided pursuant to Section
301 with respect to the Debt Securities of any series.
(g) No Debt Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose
unless there appears on such Debt Security a certificate of
authentication substantially in one of the forms provided for
herein duly executed by the Trustee or by an Authenticating Agent
by manual signature of one of its authorized officers, and such
certificate upon any Debt Security shall be conclusive evidence,
and the only evidence, that such Debt Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
<PAGE>
SECTION 304. Temporary Debt Securities. Pending the
preparation of definitive Debt Securities of any series, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Debt Securities that are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the
tenor of the definitive Debt Securities in lieu of which they are
issued, in registered form, and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Debt Securities, may determine, as conclusively
evidenced by their execution of such Debt Securities. Any such
temporary Debt Security may be in global form, representing all
or a portion of the Outstanding Debt Securities of such series.
Every such temporary Debt Security shall be executed by the
Company and shall be authenticated and delivered by the Trustee
or the Authenticating Agent, as the case may be, upon the same
conditions and in substantially the same manner, and with the
same effect, as the definitive Debt Security or Securities in
lieu of which it is issued.
If temporary Debt Securities of any series are issued,
the Company will cause definitive Debt Securities of such series
to be prepared without unreasonable delay. After the preparation
of definitive Debt Securities of such series, the temporary Debt
Securities of such series shall be exchangeable for definitive
Debt Securities of such series upon surrender of the temporary
Debt Securities of such series at the office or agency of the
Company in a Place of Payment for such series, without charge to
the Holder, except as provided in Section 305 in connection with
a transfer, and upon surrender for cancellation of any one or
more temporary Debt Securities of any series, the Company shall
execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt
Securities of the same series of authorized denominations and of
like tenor. Until so exchanged, temporary Debt Securities of any
series shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities of such
series.
Upon any exchange of a portion of a temporary Global
Security for a definitive Global Security or for the individual
Debt Securities represented thereby pursuant to this Section 304
or Section 305, the temporary Global Security shall be endorsed
by the Trustee to reflect the reduction of the principal amount
evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by
the amount so exchanged and endorsed.
SECTION 305. Registration, Transfer and Exchange. (a)
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register for each series of Registered
Securities (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of
Registered Securities and of transfers and exchanges of
Registered Securities and the address at which notice and demand
to or upon the Company in respect of this Indenture and the Debt
Securities may be served by the Holders of Debt Securities.
Marine Midland Bank is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering
transfers and exchanges of Registered Securities as herein
<PAGE>
provided; provided, however, that the Company may appoint
co-Security Registrars. Such Security Register shall be in
written form or in any other form capable of being converted into
written form within a reasonable period of time. At all
reasonable times the Security Register shall be open for
inspection by the Company or the Trustee.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency of the
Company maintained for such purpose, the Company shall execute,
and the Trustee or any Authenticating Agent shall authenticate
and deliver, in the name of the designated transferee, one or
more new Registered Securities of the same series of any
authorized denomination or denominations of like tenor and
aggregate principal amount, bearing a number not
contemporaneously Outstanding and containing identical terms and
provisions.
Notwithstanding any other provision of this Section,
unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security
representing all or a portion of the Debt Securities of a series
may not be transferred except as a whole by the Depositary for
such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such
successor Depositary.
At the option of the Holder, Registered Securities of
any series (other than a Global Security, except as set forth
below) may be exchanged for other Registered Securities of the
same series of any authorized denomination or denominations of
like tenor and aggregate principal amount containing identical
terms and conditions, upon surrender of the Registered Securities
to be exchanged at the office or agency of the Company maintained
for such purpose.
Whenever any Debt Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Debt Securities that the Holder
making the exchange is entitled to receive.
(b) If at any time the Depositary for the Debt
Securities of a series notifies the Company that it is unwilling
or unable to continue as Depositary for the Debt Securities of
such series or if at any time the Depositary for the Debt
Securities of such series shall no longer be eligible under
Section 303(d), the Company shall appoint a successor Depositary
with respect to the Debt Securities of such series. If a
successor Depositary for the Debt Securities of such series is
not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Debt
Securities of such series, will authenticate and deliver,
individual Debt Securities of such series in an aggregate
principal amount equal to the principal amount of the Global
Security or Securities representing Debt Securities of such
series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that Debt Securities of any series issued in the form
of one or more Global Securities shall no longer be
<PAGE>
represented by such Global Security or Securities. In such event
the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual
Debt Securities of such series, will authenticate and deliver,
individual Debt Securities of such series in an aggregate
principal amount equal to the principal amount of the Global
Security or Securities representing Debt Securities of such
series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 301
with respect to a series of Debt Securities, the Depositary for
such series of Debt Securities may surrender a Global Security
for such series of Debt Securities in exchange in whole or in
part for individual Debt Securities of such series on such terms
as are acceptable to the Company and such Depositary. Thereupon,
the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to each Person specified by such Depositary a new
individual Debt Security or Securities of the same series,
of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global Security;
and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of individual Debt Securities
delivered to Holders thereof.
In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver individual Debt Securities in registered
form and in authorized denominations.
Upon the exchange of a Global Security for individual
Debt Securities, such Global Security shall be canceled by the
Trustee. Individual Registered Securities issued in exchange for
a Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Registered Securities to
the Persons in whose names such Registered Securities are so
registered.
(c) All Debt Securities issued upon any transfer or
exchange of Debt Securities shall be valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Debt Securities surrendered
for such transfer or exchange.
Every Registered Security presented or surrendered for
transfer or exchange shall (if so required by the Company, the
Trustee or the Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security
Registrar, duly executed, by the Holder thereof or his attorney
duly authorized in writing.
<PAGE>
No service charge will be made for any transfer or exchange
of Debt Securities except as provided in Section 304 or 306. The
Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection
with any registration, transfer or exchange of Debt Securities,
other than those expressly provided in this Indenture to be made
at the Company's own expense or without expense or without charge
to the Holders.
The Company or the Trustee, as applicable, shall not
be required (i) to register, transfer or exchange Debt Securities
of any series during a period beginning at the opening of
business 15 days before the day of the transmission of a notice
of redemption of Debt Securities of such series selected for
redemption under Section 1303 and ending at the close of business
on the day of such transmission, or (ii) to register, transfer or
exchange any Debt Security so selected for redemption in whole or
in part, except the unredeemed portion of any Debt Security being
redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities. If (i) any mutilated Debt Security is
surrendered to the Trustee at its Corporate Trust Office or (ii)
the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt
Security, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save
each of them and any Paying Agent harmless, and neither the
Company nor the Trustee receives notice that such Debt Security
has been acquired by a bona fide purchaser, then the Company
shall execute and upon Company Request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Debt Security, a new Debt
Security of the same series of like tenor, form, terms and
principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen
Debt Security has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Debt
Security, pay the amount due on such Debt Security in accordance
with its terms.
Upon the issuance of any new Debt Security under this
Section 306, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in respect thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Debt Security of any series, issued pursuant
to this Section 306 shall constitute an original additional
contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debt Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all
other Debt Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities.
<PAGE>
SECTION 307. Payment of Interest; Interest Rights Preserved. (a)
Interest on any Registered Security that is payable and is
punctually paid or duly provided for on any Interest Payment Date
shall be paid to the Person in whose name such Registered
Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such
interest notwithstanding the cancellation of such Registered
Security upon any transfer or exchange subsequent to the Regular
Record Date. Payment of interest on Registered Securities shall
be made at the Corporate Trust Office or at the corporate offices
of the Bank in New York City (except as otherwise specified
pursuant to Section 301) or, at the option of the Company, by
check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if
provided pursuant to Section 301 and in accordance with
arrangements satisfactory to the Trustee, at the option of the
Registered Holder, by wire transfer to an account designated by
the Registered Holder.
(b) Any interest on any Debt Security of any series
that is payable but is not punctually paid or duly provided for
on any Interest Payment Date (herein called "Defaulted Interest")
shall, if such Debt Security is a Registered Security, forthwith
cease to be payable to the Registered Holder on the relevant
Regular Record Date by virtue of having been such a Registered
Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each such
Registered Security and the date of the proposed payment,
and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment The Trustee shall
promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holders of such
Registered Securities at their addresses as they appear in
the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities)
are registered at the close of business on
such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on Registered Securities in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Registered Securities may
be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the
Trustee.
(c) Subject to the foregoing provisions of this
Section 307, each Debt Security delivered under this Indenture
upon transfer of or in exchange for or in lieu of any other Debt
Security shall carry the rights to interest accrued and unpaid,
and to accrue, that were carried by such other Debt Security.
SECTION 308. Cancellation. Unless otherwise specified
pursuant to Section 301 for Debt Securities of any series, all
Debt Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Debt Securities previously
authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all Debt Securities so
delivered shall be promptly canceled by the Trustee. No Debt
Securities shall be authenticated in lieu of or in exchange for
any Debt Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled Debt
Securities held by the Trustee shall be returned to the Company.
The acquisition of any Debt Securities by the Company shall not
operate as a redemption or satisfaction of the indebtedness
represented thereby unless and until such Debt Securities are
surrendered to the Trustee for cancellation.
SECTION 309. Computation of Interest. Except as
otherwise specified pursuant to Section 301 for Debt Securities
of any series, interest on the Debt Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 310. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers, (if then generally in use),
and, if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt
Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers
printed on the Debt Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers.
SECTION 311. Persons Deemed Owners. The Company, the
Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to
Section 307) interest, if any, on, such
<PAGE>
Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary. All payments
made to any Holder, or upon his order, shall be valid, and, to
the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Debt
Security.
None of the Company, 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 in a global Debt
Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any
global Debt Security, nothing herein shall prevent the Company,
the Trustee, or any agent of the Company or the Trustee, from
giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with
respect to such global Debt Security or impair, as between such
Depositary and owners of beneficial interests in such global Debt
Security, the operation of customary practices governing the
exercise of the rights of such depositary (or its nominee) as
Holder of such global Debt Security.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Debt Securities of any series
(if all series issued under this Indenture are not to be
affected), shall, upon Company Order, cease to be of further
effect (except as to any surviving rights of registration of
transfer or exchange of such Debt Securities herein expressly
provided for and rights to receive payments of principal of (and
premium, if any) and interest on such Debt Securities) and the
Trustee, upon receipt of a Company Order and at the expense of
the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) Debt Securities
of such series that have been destroyed, lost or stolen and
that have been replaced or paid as provided in Section 306
and (ii) Debt Securities of such series for whose payment
money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in
Section 1203) have been delivered to the Trustee for
cancellation; or
<PAGE>
(B) all Debt Securities of such series 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) are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire
indebtedness on such Debt Securities for principal (and
premium, if any) and interest to the date of such deposit
(in the case of Debt Securities that have become due and
payable) or to the Stated Maturity or Redemption Date, as
the case may be; provided, however, in the event a petition
for relief under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or
state bankruptcy, insolvency or other similar law, is filed
with respect to the Company within 91 days after the
deposit and the Trustee is required to return the moneys
then on deposit with the Trustee to the Company, the
obligations of the Company under this Indenture with
respect to such Debt Securities shall not be deemed
terminated or discharged;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture with respect to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 607, the obligations of the Company to any Authenticating
Agent under Section 614, and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this
Section 401, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1203 shall survive.
SECTION 402. Application of Trust Money. Subject to
Section 607 and the provisions of the last paragraph of Section
1203, all money deposited with the Trustee pursuant to Section
401 shall be held in trust and applied by it, in accordance with
the provisions of the Debt Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, or the principal (and premium,
if any)and interest for whose payment such money has been deposited with
or received by the Trustee, except that such money need not be
segregated from other funds except to the extent required by
applicable law.
SECTION 403. Indemnity. The Company shall pay and
indemnify the Trustee and the Holders of Debt Securities of any
series as to which the Company's obligations under this Indenture
have terminated against any tax, fee or other charge resulting
from the deposit of cash in accordance with Section 401 and
termination of the Company's obligations under this Indenture
with respect to the Debt Securities of such series.
SECTION 404. Subordination Provisions Inapplicable.
Notwithstanding anything contained herein to the contrary, any
money that shall have been deposited by the Company with the
Trustee pursuant to Section 401 shall not be subject to the
provisions of Article XV of this Indenture respecting
subordination of the Debt Securities; provided, however, that
said provisions respecting subordination shall continue to apply
to such money, if any, that has been returned to the Company or
its legal representative pursuant to an order or judgment of a
court or governmental authority but only to the extent that all
obligations of the Company under this Indenture, the Debt
Securities shall be in full force and effect.
ARTICLE V
REMEDIES
SECTION 501. Events of Default. "Event of Default"
wherever used herein with respect to Debt 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, pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless it
is inapplicable to a particular series:
(1) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization or similar law or (B) a decree or order
under any applicable federal or state law appointing a
receiver or similar official of the Bank or of
substantially all its property, and the continuance in the
case of any proceedings under clause (A) above of any such
decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive
days; or
(2) the commencement by the Company of a voluntary
case under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law of any
other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Company to the entry of a
decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal
or state bankruptcy, insolvency, reorganization or similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by the Company of a
petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the
consent by the Company to the filing of such petition or to
the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee sequestrator or
similar official of the Company or of substantially all its
property.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 25% in principal amount of Outstanding Debt Securities of
such series may declare the principal amount (or, if any Debt
Securities of such series are Discount Securities or Indexed
Securities, such portion of the principal amount of such Discount
Securities as may be specified in the terms of such Discount
Securities or Indexed Securities) of and all accrued but unpaid
interest on all the Debt Securities of such series to be due and
payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) and
interest shall become immediately due and payable. Upon payment
of such amounts, all obligations of the Company in respect of the
payment of principal of and interest on the Debt Securities of
such series shall terminate.
At any time after such a declaration of acceleration
with respect to Debt Securities of any series has been made and
before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article V
provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments on all Debt Securities of such
series,
(B) the principal of (and premium, if any, on)
any Debt Securities of such series that have become
due and payable otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of
interest on each Debt Security at the rate or rates
prescribed therefor in such Debt Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Defaults with respect to Debt Securities of
such series have been remedied.
<PAGE>
No such rescission and waiver shall affect any subsequent
default or impair any right consequent thereon.
For all purposes under this Indenture, if a portion of
the principal of any Discount Securities shall have been
accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless
such declaration has been rescinded and annulled, the principal
amount of such Discount Securities shall be deemed, for all
purposes hereunder, to be such portion of the principal thereof
as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due
and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Discount Securities.
SECTION 503. Defaults; Collection of Indebtedness and
Suits for Enforcement by Trustee. "Default", wherever used
herein, means any one of the following events (whatever the
reason for such Default and whether it shall be voluntary or
involuntary or be effected by operation of law pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) with
respect to any series of Debt Securities under this Indenture:
(1) an Event of Default has occurred with respect to such
Debt Securities specified in Section 501;
(2) the Company fails to pay the principal of (or
premium, if any, on) any Debt Security of such series at
the Maturity thereof and such failure is continued for
seven days, whether or not such payment is prohibited by
Article XV hereof; or
(3) the Company fails to pay any installment of
interest on any Debt Security of such series when such
interest becomes due and payable and such failure is
continued for 30 days, whether or not such payment is
prohibited by Article XV hereof;
provided that if the Company does not pay any installment of
interest on the pertinent Interest Payment Date or all or any
part of principal at Maturity, the obligation to make such
payment and such Interest Payment Date or Maturity, as the case
may be, shall be deferred until (i) in the case of a payment of
interest, the date upon which a dividend is paid on any class of
share capital of the Company and (ii) in the case of a payment of
principal, the first Business Day after the date that falls six
months after the original Maturity. Failure by the Company to
make any such payment prior to such deferred Interest Payment
Date or Maturity shall not constitute a default by the Company or
otherwise allow any Holder to sue the Company for such payment or
to take any other action. Any payment so deferred shall not be
treated as due for any purpose (including, without limitation,
for the purposes of ascertaining whether or not a Default has
occurred) until the deferred Interest Payment Date or Maturity,
as the case may be. Any such deferral shall take place only once
with respect to any payment of interest or principal.
<PAGE>
The Company covenants that, if a Default shall occur
with respect to the Debt Securities of a particular series, it
will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Debt Securities of such series,
the entire amount then due and payable on such Debt Securities,
for the principal (and premium, if any) and interest, if any, and
interest upon the overdue principal (and premium, if any) and, to
the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the rate
or rates prescribed therefor in such Debt Securities of such
series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt
Securities of such series, and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Debt
Securities of such series wherever situated.
If a Default with respect to Debt 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 Debt Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case
of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceedings, or any voluntary or involuntary
case under the Federal bankruptcy laws, as now or hereafter
constituted, relative to the Company or any other obligor upon
the Debt Securities, of a particular series or the property of
the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or
by declaration of acceleration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for
the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and
unpaid in respect of the Debt Securities of such series 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 and counsel) and of the Holders of such Debt
Securities allowed in such judicial proceeding, and
<PAGE>
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any receiver, assignee, trustee, custodian, liquidator,
sequestrator (or other similar official) in any such proceeding
is hereby authorized by each such Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to
the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section
607.
Nothing herein shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Debt Securities of such series or
the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession
of Debt Securities. All rights of action and claims under this
Indenture or the Debt Securities of any series may be prosecuted
and enforced by the Trustee without the possession of any of such
Debt Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name, as trustee of an
express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Debt Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article V 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 (and premium, if any) or interest, upon presentation
of the Debt Securities of any series in respect of which money
has been collected and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest
on the Debt Securities of such series, in respect of which
or for the benefit of which such money has been collected
ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt
Securities for principal (and premium, if any) and
interest, respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any Debt
Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Default with respect to such
series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Debt Securities of such series
shall have made written request to the Trustee to institute
proceedings in respect of such Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee, in its reasonable
discretion, 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 Debt 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 to affect,
disturb or prejudice the rights of any other such Holders or of
the Holders of Outstanding Debt Securities of any other series,
or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders. For the protection
and enforcement of the provisions of this Section 507, each and
every Holder of Debt Securities of any series and the Trustee for
such series shall be entitled to such relief as can be given at
law or in equity.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Subject only to the provisions
of Article XV, the Holder of any Debt Security shall have the
right, which is absolute and unconditional, to receive payment of
the principal of (and premium, if any) and (subject to Section
307) interest on the respective Stated Maturity or Maturities
expressed in such Debt Security (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement
of any such payment and interest thereon, 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 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 Company, the Trustee and the Holders
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 the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Right and Remedies Cumulative. Except as
otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder 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 any acquiescence therein. Every right and remedy given
by this Indenture or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders. The Holders of not
less than a majority in principal amount of the Outstanding Debt
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 Debt Securities of
such series; provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 601, the
Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a
Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed might result in
personal liability or would be unjustly prejudicial to the
Holders of Debt Securities of such series not joining in
any such direction; and
(3) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such
direction.
SECTION 513. Waiver of Past Defaults. The Holders of
not less than a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series waive any past default
hereunder with respect to such series and its consequences,
except a default
(1) in the payment of the principal of (or premium, if any)
or interest on any Debt Security of such series, or
<PAGE>
(2) in respect of a covenant or provision hereof that under
Article XI cannot be modified or amended without the consent of
the Holder of each Outstanding Debt Security of such series
affected.
Upon any such waiver, such default shall cease to
exist, and any Default arising therefrom shall be deemed to have
been cured, for every purpose of the Debt Securities of such
series under this Indenture, but no such waiver shall extend to
any subsequent or other default or impair any right consequent
thereon.
SECTION 514. Undertaking for Costs. All parties to
this Indenture agree, and each Holder of any Debt 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, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant, but the
provisions of this Section 514 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder
or group of Holders holding in the aggregate more than 10% in
principal amount of the Outstanding Debt Securities of any
series, or to any suit instituted by any Holder of a Debt
Security for the enforcement of the payment of the principal of
(or premium, if any) or interest on such Debt Security on or
after the respective Stated Maturity or Maturities expressed in
such Debt Security (or, in the case of redemption, on or after
the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no
such law had been enacted.
<PAGE>
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities. (a) With
respect to Debt Securities of any series, except during the
continuance of an Event of Default or Default with respect to the
Debt Securities of such series,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon an Officers' Certificate or Opinion of
Counsel or any other certificates or opinions furnished to
the Trustee and conforming to the requirements of this
Indenture; but in the case of any Officers' Certificate or
Opinion of Counsel or any other such certificates or
opinions which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case a Default with respect to Debt Securities
of any series has occurred and is continuing, the Trustee shall,
with respect to the Debt Securities of such series, exercise such
of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct
of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it, with respect
to Debt Securities of any series, in good faith in accordance
with the direction of the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series relating
to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with
respect to the Debt Securities of any such series; and
(4) the Trustee shall not be required to expend
or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 601.
SECTION 602. Notice of Defaults. Within 90 days after
the occurrence of any default hereunder with respect to Debt
Securities of any series, the Trustee shall by the pertinent
methods provided in Section 105 give notice to all Holders of
Debt Securities of such series of each default hereunder known to
the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of default in the
payment of the principal of (or premium, if any) or interest on
any Debt Security of such series, the Trustee shall be protected
in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the
interest of the Holders of Debt Securities of such series;
provided further that in the case of any default of the character
specified in Section 501(1)(A) with respect to Debt Securities of
such series no such notice to Holders shall be given until at
least 60 days after the occurrence thereof and provided further
that the Trustee shall not be deemed to have knowledge of an
Event of Default unless either (A) a Responsible Officer of the
Trustee assigned to the Trustee's Corporate Trust Administration
Department shall have actual knowledge of such Event of Default
or (B) the Trustee shall have received written notice thereof
from the Company or from any Holder. For the purpose of this
Section, the term "default" means any event that is, or after
notice or lapse of time or both would become, a Default with
respect to Debt Securities of such series.
SECTION 603. Certain Rights of Trustee. Except as otherwise
provided in Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document believed
by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board
Resolution;
<PAGE>
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
of Debt Securities of any series pursuant to this
Indenture, unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to the Trustee,
in its reasonable discretion, against the costs, expenses
and liabilities that might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, 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 the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers
conferred upon it by this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance
of Debt Securities. The recitals contained herein and in the Debt
Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of
this Indenture, of the Debt Securities of any series or to any
prospectus relating to the series of Debt Securities. The Trustee
shall not be accountable for the use or application by the
Company of any Debt Securities or the proceeds thereof.
SECTION 605. May Hold Debt Securities. The Trustee, any
Paying Agent, the Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Debt Securities, and, subject
to Sections 310(a)(5), 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or
such other agent.
SECTION 606. Money Held in Trust. Money held by the
Trustee or any Paying Agent (except the Company) in trust
hereunder need not be segregated from other funds except to the
extent required by law. Neither the Trustee nor any Paying Agent
shall be under any liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such
compensation in Dollars for all services rendered by it
hereunder as may be mutually agreed upon in writing by the
Company and the Trustee (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) to reimburse the Trustee in Dollars upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify in Dollars the Trustee for, and to
hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this trust or performance of its duties
hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties
hereunder.
When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Sections
501(1) and 501(2), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or state bankruptcy, insolvency or
other similar laws.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Debt Securities, upon all property and funds held or
collected by the Trustee as such, except funds held in trust for
the payment of amounts due on the Debt Securities.
The obligations of the Company under this Section 607 to
compensate and indemnify the Trustee for expenses, disbursements
and advances shall constitute additional indebtedness under this
Indenture and shall survive the satisfaction and discharge of
this Indenture.
SECTION 608. Disqualification, Conflicting Interests.
(a) The Trustee shall comply with TIA ss. 310(b); provided,
however, that there shall be excluded from the operation of TIA
ss. 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for
such exclusion set forth in TIA ss. 310(b)(1) are met.
(b) If Section 310(b) of the Trust Indenture Act is
amended at any time after the date of this Indenture to change
the circumstances under which a Trustee shall be deemed to have a
conflicting interest with respect to the Debt Securities of any
series or to change any of the definitions in connection
therewith, this Section 608 shall be automatically amended to
incorporate such changes.
SECTION 609. Corporate Trustee Required, Eligibility.
There shall at all times be a Trustee hereunder that shall be a
corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or
State authority and having its Corporate Trust Office or an
agency in New York, New York; provided, however, that if Section
310(a) of the Trust Indenture Act or the rules and regulations of
the Commission under the Trust Indenture Act at any time permit a
corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified
under the Trust Indenture Act, this Section 609 shall be
automatically amended to permit a corporation organized and doing
business under the laws of any such other jurisdiction to serve
as Trustee hereunder. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. The Trustee shall comply with Section
310(a)(5) of the Trust Indenture Act. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal, Appointment of
Successor. (a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to
the Debt Securities of one or more series by giving written
notice thereof to the Company. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Debt Securities of such series.
<PAGE>
(c) The Trustee may be removed at any time with respect to
the Debt Securities of any series and a successor Trustee
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608(a) with respect to the Debt Securities of any series
after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 with respect to the Debt Securities of any
series and shall fail to resign after written request
therefor by the Company or by any Holder who has been a
bona fide Holder of a Debt Security of such series for at
least six months, or
(3) the Trustee shall become incapable of acting
or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in
respect of the Trustee in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy,
insolvency or similar law; or a decree or order by a court
having jurisdiction in the premises shall have been entered
for the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official)
of the Trustee or of its property or affairs, or any public
officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case
under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Trustee or its property or
affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay
its debts generally as they become due, or shall take
corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Debt Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide
Holder of a Debt Security of any 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 and the appointment of a successor Trustee for the
Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Debt Securities of one
or more series, the Company, by a Board Resolution, shall
promptly appoint a successorTrustee or Trustees with respect to
the Debt Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to
the Debt 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
Debt Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Debt Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Debt Securities of such
series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to
the Debt Securities of any series shall have been so appointed by
the Company or the Holders of such series and accepted
appointment in the manner hereinafter provided, any Holder who
has been a bona fide Holder of a Debt Security of such series for
at least six months may, subject to Section 514, 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 Debt Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Debt
Securities of any series and each appointment of a successor
Trustee with respect to the Debt Securities of any series in the
manner and to the extent provided in Section 105 to the Holders
of Debt Securities of such series. Each notice shall include the
name of the successor Trustee with respect to the Debt Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor
Trustee with respect to all Debt Securities, each such successor
Trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if
any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but
not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Debt Securities of one or
more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debt
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 Debt 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 Debt 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 any such
supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of
a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Debt 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 Debt Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been
authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
<PAGE>
SECTION 613. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of
the Company (or any other obligor upon the Debt Securities of a
series), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent. As
long as any Debt Securities of a series remain Outstanding, the
Trustee may, by an instrument in writing, appoint an
authenticating agent (the "Authenticating Agent") which shall be
authorized to act on behalf of the Trustee to authenticate Debt
Securities of such series issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 306. Debt
Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as
if authenticated by such Trustee. Wherever reference is made in
this Indenture to the authentication and delivery of Debt
Securities of any series by the Trustee for such series or to the
Trustee's Certificate of Authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee for such series by an Authenticating Agent for such
series and a Certificate of Authentication executed on behalf of
such Trustee by such Authenticating Agent Such Authenticating
Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$10,000,000 (determined as provided in Section 609 with respect
to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any 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 any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business or
corporate trust business of any Authenticating Agent, shall
continue to be the Authenticating Agent with respect to all
series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further
act on the part of the Trustee for such series or such
Authenticating Agent. Any Authenticating Agent may at any time,
and if it shall cease to be eligible shall, resign by giving
written notice of resignation to the applicable Trustee and to
the Company.
Upon receiving such a notice of resignation, or in case at
any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 614 with respect
to one or more of all series of Debt Securities, the Trustee for
such series shall upon Company Request appoint a successor
Authenticating Agent, and the Company shall provide notice of
such appointment to all Holders of Debt Securities of such series
in the manner and to the extent provided in Section 105. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect
as if originally named as Authenticating Agent. The Company
agrees to pay to the Authenticating Agent for such series from
time to time reasonable compensation including reimbursement of
its reasonable expenses for its services. The Authenticating
Agent for the Debt Securities of any series shall have no
responsibility or liability for any action taken by it as such at
the direction of the Trustee for such series.
<PAGE>
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders. The Company will furnish or cause to be
furnished to the Trustee with respect to Registered Securities of
each series for which it acts as Trustee:
(a) semiannually, not later than 15 days after the
Regular Record Date for interest for each series of Debt
Securities, of each year, a list, in such form as the
Trustee may reasonably require, of the names and addresses
of the Registered Holders as of the Regular Record Date,
respectively; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is
furnished;
provided, however, that if and so long as the Trustee shall be
the Security Registrar, no such list need be furnished.
SECTION 702. Preservation of Information;
Communication to Holders. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as
to the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701,
received by it in the capacity of Paying Agent or Security
Registrar (if so acting) hereunder, and filed with it within the
two preceding years pursuant to Section 704(2).
The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished,
destroy any information received by it as Paying Agent or
Security Registrar (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than 45 days after an Interest
Payment Date, a list containing the names and addresses of the
Holders obtained from such information since the delivery of the
next previous list, if any, destroy any list delivered to itself
as Trustee which was compiled from information received by it as
Paying Agent or Security Registrar (if so acting) hereunder upon
the receipt of a new list so delivered, and destroy not earlier
than two years after filing, any information filed with it
pursuant to Section 704(2).
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a
Debt Security for a period of at least six months preceding the
date of such application, and such application states that the
applicants desire to communicate with other Holders of Debt
Securities of a particular series (in which case the applicants
must hold Debt Securities of such series) or with all Holders of
Debt Securities with respect to their rights under this Indenture
or under the Debt Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election
either:
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate
number of Holders of Debt Securities of such series or of
all Debt Securities, as the case may be, whose names and
addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), and as to
the approximate cost of mailing to such Holders the form of
proxy or other communication, specified in such
application.
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
written request of such applicants, mail to the Holders of Debt
Securities of such series or all Holders, as the case may be,
whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), a copy
of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of mailing, unless
within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the Holders of Debt Securities
of such series or all Holders, as the case may be, or would be in
violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining
one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting
their application.
(c) Every Holder of Debt Securities, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any Paying Agent shall be
held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in
accordance with Section 702(b), 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 702(b).
SECTION 703. Reports by Trustee. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after
<PAGE>
each May 15 following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies
with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange, if any, upon which the Debt Securities are
listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed
on any stock exchange.
SECTION 704. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the
Company 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 Company
may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended; or, if the Company is not required to
file information, documents or reports pursuant to either
of said Sections, then it will 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, as amended, in respect of
a security listed and registered on a national securities
exchange as may be required 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
Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and
regulations; and
(3) transmit to all Holders of Debt Securities, in the
manner and to the extent provided in Section 703, within 30
days after the filing thereof with the Trustee, such
summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section 704 as may be required by rules
and regulations prescribed from time to time by the
Commission.
ARTICLE VIII
CONCERNING THE HOLDERS
SECTION 801. Acts of Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by 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 or proxy duly appointed in writing, and, except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or
instruments. Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount
of the Outstanding Debt Securities of any series may take any
Act, the fact that the Holders of such specified percentage have
joined therein may be evidenced (a) by the instrument or
instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in
favor thereof at any meeting of such Holders duly called and held
in accordance with the provisions of Article IX, or (c) by a
combination of such instrument or instruments and any such record
of such a meeting of Holders.
SECTION 802. Proof of Ownership; Proof of Execution of
Instruments by Holders. The ownership of Registered Securities of
any series shall be proved by the Security Register for such
series or by a certificate of the Security Registrar for such
series.
Subject to the provisions of Sections 601, 603 and
905, proof of the execution of a writing appointing an agent or
proxy and of the execution of any instrument by a Holder or his
agent or proxy shall be sufficient and conclusive in favor of the
Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person
of any instrument may be proved by the certificate of any notary
public or other officer authorized to take acknowledgment of
deeds, that the person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation
or association or a member of a partnership on behalf of such
corporation, association or partnership, as the case may be, or
by any other person acting in a representative capacity, such
certificate or affidavit shall also constitute sufficient proof
of his authority.
The record of any Holders' meeting shall be proved in
the manner provided in Section 906.
The Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section so
long as the request is a reasonable one.
If the Company shall solicit from the Holders of Debt
Securities of any series any Act, the Company may, at its option,
by Board Resolution, fix in advance a record date for the
determination of Holders of Registered Securities entitled to
take such Act, but the Company shall have no obligation to do so.
Such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the
date such solicitation is completed.
<PAGE>
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Debt Security
shall bind every future Holder of the same Debt Security and any
Debt Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything
done, suffered or omitted by the Trustee or any agent of the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Debt Security.
SECTION 803. Revocation of Consents; Future Holders
Bound. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 801, of the taking of any Act by
the Holders of the percentage in aggregate principal amount of
the Outstanding Debt Securities specified in this Indenture in
connection with such Act, any Holder of a Debt Security the
number, letter or other distinguishing symbol of which is shown
by the evidence to be included in the Debt Securities the Holders
of which have consented to such Act may, by filing written notice
with the Trustee at the Corporate Trust Office and upon proof of
ownership as provided in Section 802, revoke such Act so far as
it concerns such Debt Security. Except as aforesaid, any such Act
taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and upon all future Holders of such Debt
Security and of any Debt Securities issued on transfer or in lieu
thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such
Debt Security or such other Debt Securities.
ARTICLE IX
HOLDERS' MEETINGS
SECTION 901. Purposes of Meetings. A meeting of
Holders of any or all series may be called at any time and from
time to time pursuant to the provisions of this Article IX for
any of the following purposes:
(1) to give any notice to the Company or to the
Trustee for such series, or to give any directions to the
Trustee for such series, or to consent to the waiving of
any default hereunder and its consequences, or to take any
other action authorized to be taken by Holders pursuant to
any of the provisions of Article V;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article VI;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 1102; or
(4) to take any other action authorized to be taken by
or on behalf of the Holders of any specified aggregate
principal amount of the Outstanding Debt Securities of any
one or more or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
<PAGE>
SECTION 902. Call of Meetings by Trustee. The Trustee for
any series may at any time call a meeting of Holders of such
series to take any action specified in Section 901, to be held at
such time or times and at such place or places as the Trustee for
such series shall determine. Notice of every meeting of the
Holders of any series, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at
such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 105. Such notice
shall be given not less than 20 days or more than 90 days prior
to the date fixed for the meeting.
SECTION 903. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in aggregate principal amount of
the Outstanding Debt Securities of a series or of all series, as
the case may be, shall have requested the Trustee for such series
to call a meeting of Holders of any or all such series by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such
request, then the Company or such Holders may determine the time
or times and the place or places for such meetings and may call
such meetings to take any action authorized in Section 901, by
giving notice thereof as provided in Section 902.
SECTION 904. Qualifications for Voting. To be entitled
to vote at any meeting of Holders of any series a Person shall be
(a) a Holder of a Debt Security of the series with respect to
which such meeting is being held or (b) a Person appointed by an
instrument in writing as agent or proxy by such Holder. The only
Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee
for the series with respect to which such meeting is being held
and its counsel and any representatives of the Company and its
counsel.
SECTION 905. Regulations. Notwithstanding any other
provisions of this Indenture, the Trustee for any series may make
such reasonable regulations as it may deem advisable for any
meeting of Holders of Debt Securities of such series, in regard
to proof of the holding of Debt 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.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders of such
series as provided in Section 903, in which case the Company or
the Holders 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 a
majority vote of the meeting.
Subject to the provisos in the definition of
"Outstanding," at any meeting each Holder of a Debt Security of
the series with respect to which such meeting is being held or
proxy therefor shall be entitled to vote in such manner so that
whether the specified percentage required
for any Act has been voted may be calculated by the inspectors;
provided, however, that no vote shall be cast or counted at any
meeting in respect of any Debt 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 other than by virtue of Outstanding Debt Securities of such
series held by him or instruments in writing duly designating him
as the person to vote on behalf of Holders of Debt Securities of
such series. Any meeting of Holders with respect to which a
meeting was duly called pursuant to the provisions of Section 902
or 903 may be adjourned from time to time by a majority of such
Holders present and the meeting may be held as so adjourned
without further notice.
SECTION 906. Voting. The vote upon any resolution
submitted to any meeting of Holders with respect to which such
meeting is being held shall be by written ballots on which shall
be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the
Debt Securities 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 duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of
each meeting of Holders 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 transmitted as provided in Section
902. The record shall show the serial numbers of the Debt
Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 907. No Delay of Rights by Meeting. Nothing in
this Article IX contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of
Holders or any rights expressly or impliedly conferred hereunder
to make such call, any hindrance or delay in the exercise of any
right or rights conferred upon or reserved to the Trustee or to
any Holder under any of the provisions of the Indenture or of the
Debt Securities of any series.
<PAGE>
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 1001. Company May Consolidate, etc., Only on
Certain Terms. The Company shall not consolidate with or merge
into any other corporation or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
unless:
(1) the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety (the "successor corporation") shall be a
corporation organized and existing under the laws of the
United States or any political subdivision thereof and
shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest on
all the Debt Securities and the performance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such
transaction and treating any indebtedness that becomes an
obligation of the Company as a result of such transaction
as having been incurred by the Company at the time of such
transaction, no Default, and no event that, after notice or
lapse of time, or both, would become a Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger, conveyance,
transfer or lease, and the assumption by any successor
entity, and such supplemental indenture comply with this
Article X and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 1002. Successor Corporation Substituted. Upon
any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety in accordance with
Section 1001, the successor corporation formed by such
consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and
be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
corporation shall be relieved of all obligations and covenants
under this Indenture and the Debt Securities.
SECTION 1003. Opinion of Counsel. The Trustee shall be
entitled to receive and, subject to Sections 601 and 603, shall
be protected in relying upon an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance or
lease and any such assumption complies with the provisions of
this Article X.
<PAGE>
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures Without Consent
of Holders. Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another corporation
to the Company and the assumption by such successor of the
covenants of the Company herein and in the Debt Securities
contained; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Debt
Securities (and, if such covenants are to be for the
benefit of less than all such series, stating that such
covenants are expressly being included solely for the
benefit of such series), or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Defaults or Events of
Default (and, if such Defaults or Events of Default are to
be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being
included solely to be applicable to such series); or
(4) to change or eliminate any restrictions on the
payment of principal of (or premium, if any, on) Registered
Securities, provided that any such action shall not
adversely affect the interests of the Holders of Debt
Securities of any series in any material respect, or to
permit or facilitate the issuance of Debt Securities of any
series in uncertificated form; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or
elimination shall become effective only when there is no
Outstanding Debt Security of any series created prior to
the execution of such supplemental indenture that is
entitled to the benefit of such provision and as to which
such supplemental indenture would apply; or
(6) to establish the form or terms of Debt Securities of any
series as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to one
or more series of Debt Securities and to add to or change any of
the provisions of this Indenture as shall be necessary for or
facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 611; or
(8) to evidence any changes to Section 608 or 609 permitted
by the terms thereof; or
(9) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with
any amendments to the Trust Indenture Act, provided such action
shall not adversely affect the interests of the Holders of the
Debt Securities of any series in any material respect; or
(10) to cure any ambiguity, to correct or supplement
any provision herein that 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 that shall not be inconsistent with
any provision of this Indenture, provided such other
provisions shall not adversely affect the interests of the
Holders of Outstanding Debt Securities of any series
created prior to the execution of such supplemental
indenture in any material respect.
SECTION 1102. 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 Debt Securities of each
series affected by such supplemental indenture voting separately,
by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders under
this Indenture of such Debt Securities; provided, however, that
no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Debt Security of each such series
affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Debt
Security, or reduce the principal amount thereof or the
rate or amount of interest thereon or any premium payable
upon redemption thereof, or reduce the amount of the
principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount provable in
bankruptcy pursuant to Section 504, or adversely affect any
right of repayment at the option of any Holder of any Debt
Security, or change any Place of Payment where, or the
currency in which, any Debt Security or any premium or the
interest thereon is payable, or impair the right to
institute suit for the enforcement of any payment on or
after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or
after the Redemption Date or Repayment Date, as the case
may be); or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of
whose Holders is required for any supplemental indenture,
or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided
for in this Indenture; or
(3) modify any of the provisions of this Section 1102,
Section 513 or Section 1205, 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 Debt Security
affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and
concomitant changes in this Section 1102 and Section 1205,
or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 1101(7).
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
A supplemental indenture that changes or eliminates
any covenant or other provision of this Indenture with respect to
one or more particular series of Debt Securities, or that
modifies the rights of the Holders of Debt 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 Debt Securities of any other series.
SECTION 1103. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article XI or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture that adversely affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise in a material
way.
SECTION 1104. Effect of Supplemental Indentures. Upon
the execution of any supplemental indenture under this Article
XI, 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 Debt Securities theretofore
or thereafter authenticated and delivered hereunder shall be
bound thereby.
SECTION 1105. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article XI
shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 1106. Reference in Debt Securities to Supplemental
Indentures. Debt Securities of any series authenticated and
delivered after the execution of any supplemental indenture
pursuant to this Article XI may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the
Company shall so determine, new Debt Securities of any series so
modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Debt
Securities of such series.
SECTION 1107. Subordination Unimpaired. No
supplemental indenture entered into under this Article XI shall
modify, directly or indirectly, the provisions of Article XV or
the definition of Senior Indebtedness in Section 101 in any
manner that might alter or impair the subordination of the Debt
Securities with respect to Senior Indebtedness then outstanding
unless each holder of such Senior Indebtedness has consented
thereto in writing.
SECTION 1108. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to Section 1102, the Company
shall transmit to the Holders of Debt Securities of any series
affected thereby a notice setting forth the substance of such
supplemental indenture.
ARTICLE XII
COVENANTS
SECTION 1201. Payment of Principal, Premium and
Interest. The Company covenants and agrees for the benefit of
each series of Debt Securities, that it will duly and punctually
pay the principal of (and premium, if any) and interest on the
Debt Securities in accordance with the terms of the Debt
Securities and this Indenture.
SECTION 1202. Maintenance of Office or Agency. The
Company will maintain in each Place of Payment for any series of
Debt Securities, an office or agency where Debt Securities of
such series may be presented or surrendered for payment, where
Debt Securities of such series may be surrendered for transfer or
exchange and where notices and demands to or upon the Company in
respect of the Debt Securities of such series and this Indenture
may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all presentations,
surrenders, notices and demands.
The Company may also from time to time designate
different or additional offices or agencies to be maintained for
such purposes (in or outside of such Place of Payment), and may
from time to time rescind any such designations; provided,
however, that no such designation or rescission shall in any
manner relieve the Company of its obligations described in the
preceding paragraph. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency.
SECTION 1203. Money for Debt Securities; Payments To
Be Held in Trust. If the Company shall at any time act as its own
Paying Agent with respect to any series of Debt Securities, it
will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Debt Securities of
such series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying
Agents with respect to any series of Debt Securities it will,
prior to each due date of the principal (and premium, if any) or
interest on any Debt Securities of such series, deposit with any
such Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled thereto, and
(unless any such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect
to any series of Debt 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 1203, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Debt
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 herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Debt Securities of
such series) in the making of any payment of principal of
(and premium, if any) or interest on the Debt 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 Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent, and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
<PAGE>
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest on any Debt
Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company upon Company
Request, or (if then held by the Company) shall be discharged
from such trust, and the Holder of such Debt Security shall
thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent
before being required to make any such repayment, may at the
expense of the Company cause to be transmitted in the manner and
to the extent provided by Section 105, 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
notification, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1204. Officers' Certificate as to Default. The
Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company
(which on the date hereof is the calendar year) ending after the
date hereof, an Officers' Certificate (one of the signers of
which shall be the principal executive, principal financial or
principal accounting officer of the Company), stating whether or
not to the best knowledge of the signers thereof the Company is
in default in the performance and observation of any of the
terms, provisions and conditions of this Indenture, and, if the
Company shall be in default, specifying all such defaults and the
nature thereof of which they may have knowledge. Such compliance
shall be determined without regard to periods of grace or notice
requirements.
SECTION 1205. Waiver of Certain Covenants. The Company
may omit in any particular instance to comply, if so provided
pursuant to Section 301, with any covenant specified pursuant to
Section 301 with respect to the Debt Securities of any series if,
before the time for such compliance, the Holders of at least 66
2/3% in principal amount of the Outstanding Debt Securities of
such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such covenant, but no such waiver shall extend to or affect such
covenant except to the extent so expressly waived and, until such
waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such covenant shall
remain in full force and effect.
<PAGE>
ARTICLE XIII
REDEMPTION OF DEBT SECURITIES
SECTION 1301. Applicability of Article. Debt
Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified pursuant to Section 301 for Debt
Securities of any series) in accordance with this Article XIII.
SECTION 1302. Election to Redeem; Notice to Trustee.
Redemption of amounts owed under the Debt Securities is subject
to the prior written approval of the Board of Governors and the
Bank of England. The election of the Company to redeem any Debt
Securities shall be evidenced by a Board Resolution. In case of
any redemption at the election of the Company of less than all of
the Debt Securities of any series pursuant to Section 1303, the
Company shall, at least 60 days prior to the giving of notice of
redemption in Section 1304 by the Company (unless a shorter
period shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date and of the principal amount of Debt
Securities of such series to be redeemed. In case of any
redemption at the election of the Company of all of the Debt
Securities of any series, the Company shall, at least 45 days
prior to the giving of notice of redemption in Section 1304 fixed
by the Company (unless a shorter period shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date. In the
case of any redemption of Debt Securities prior to the expiration
of any restriction on such redemption provided in the terms of
such Debt Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restrictions.
SECTION 1303. Selection by Trustee of Debt Securities
To Be Redeemed. If less than all the Debt Securities of any
series are to be redeemed at the option of the Company, the
particular Debt Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Debt Securities of such series not
previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Debt Securities of such series or any
integral multiple thereof) of the principal amount of Debt
Securities of such series in a denomination larger than the
minimum authorized denomination for Debt Securities of such
series. In any case where more than one Registered Security of
such series is registered in the same name, the Trustee in its
discretion may treat the aggregate principal amount so registered
as if it were represented by one Registered Security of such
series.
The Trustee shall promptly notify the Company in
writing of the Debt Securities selected for redemption and, in
the case of any Debt Securities selected for partial redemption,
the principal amount thereof to be redeemed.
<PAGE>
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Debt Securities shall relate, in the case of any Debt Security
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debt Security that has been or is to be
redeemed.
SECTION 1304. Notice of Redemption. Notice of
redemption shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the
Company, not less than 30 days and not more than 60 days prior to
the Redemption Date, to the Holders of Debt Securities of any
series to be redeemed in whole or in part pursuant to this
Article XIII, in the manner provided in Section 105. Any notice
so given shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. Failure to give
such notice, or any defect in such notice to the Holder of any
Debt Security of a series designated for redemption, in whole or
in part, shall not affect the sufficiency of any notice of
redemption with respect to the Holder of any other Debt Security
of such series.
All notices of redemption shall identify the Debt
Securities to be redeemed (including CUSIP numbers) and shall
state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being
redeemed by the Company pursuant to provisions contained in
this Indenture or the terms of the Debt Securities of such
series or a supplemental indenture establishing such
series, if such be the case, together with a brief
statement of the facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of
any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of
the particular Debt Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price
will become due and payable upon each such Debt Security to
be redeemed, and that interest thereon, if any, shall cease
to accrue on and after said date,
(6) the Place or Places of Payment where such Debt
Securities are to be surrendered for payment of the Redemption
Price,
(7) if any Debt Security of any series is to be
redeemed in part, that on and after the Redemption Date,
upon surrender of such Debt Security, a new Debt Security
or Debt Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued or, in the
case of Debt Securities providing appropriate space for
such notation, at the option of the Holder, the Trustee, in
lieu of delivering a new Debt Security or Debt
<PAGE>
Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
SECTION 1305. Deposit of Redemption Price. On or prior
to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust), in
immediately available funds, an amount of money in which the Debt
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Debt Securities of such
series) sufficient to pay on the Redemption Date the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Debt Securities or
portions thereof which are to be redeemed on that date.
SECTION 1306. Debt Securities Payable on Redemption
Date. (a) Notice of redemption having been given as aforesaid,
any Debt Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price and from and
after such date (unless the Company shall default in the payment
of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption
in accordance with said notice, such Debt Security shall be paid
by the Company at the Redemption Price; provided, however, that
installments of interest that have a Stated Maturity on or prior
to the Redemption Date for such Debt Securities shall be payable
according to the terms of such Debt Securities and the provisions
of Section 307.
(b) If any Debt Security called for redemption shall
not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the
Debt Security.
SECTION 1307. Debt Securities Redeemed in Part. Any
Debt Security that is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or
agency of the Company as is specified pursuant to Section 301
with, if the Company, the Security Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Security Registrar and
the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such
Debt Security without service charge, a new Debt Security or Debt
Securities of the same series, of like tenor and form, of any
authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed
portion of the principal of the Debt Security so surrendered;
except that if a Global Security is so surrendered, the Company
shall execute, and the Trustee shall authenticate and deliver to
the Depositary for such Global Security, without service charge,
a
new Global Security in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global
Security so surrendered. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder
thereof, the Trustee, in lieu of delivering a new Debt Security
or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
<PAGE>
ARTICLE XIV
DEFEASANCE
SECTION 1401. Applicability of Article. If, pursuant
to Section 301, provision is made for the defeasance of Debt
Securities of a series and if the Debt Securities of such series
are Registered Securities, then the provisions of this Article
XIV shall be applicable except as otherwise specified pursuant to
Section 301 for Debt Securities of such series.
SECTION 1402. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations. Defeasance of amounts owed under the
Debt Securities is subject to the prior written approval of the
Board of Governors and the Bank of England. Subject to the
preceding sentence, at the Company's option, the Company shall be
deemed to have been Discharged (as defined below) from its
obligations with respect to Debt Securities of any series on the
91st day after the applicable conditions set forth below have
been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Debt
Securities of such series (i) money in an amount, or (ii)
U.S. Government Obligations (as defined below) that through
the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than
one Business Day before the due date of any payment, money
in an amount or (iii) a combination of (i) and (ii),
sufficient, in the opinion (with respect to (ii) and (iii))
of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each
installment of principal of and (premium, if any) and
interest on, the Outstanding Debt Securities of such series
on the dates such installments of interest or principal and
premium are due;
(2) if the Debt Securities of such series are then
listed on the New York Stock Exchange, the Company shall
have delivered to the Trustee an Opinion of Counsel to the
effect that the Company's exercise of its option under this
Section would not cause such Debt Securities to be
delisted;
(3) no Event of Default or event (including such
deposit) that, with notice or lapse of time, or both, would
become an Event of Default with respect to the Debt
Securities of such series shall have occurred and be
continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the Debt
Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of the Company's
exercise of its option under this Section and will be subject to
Federal income tax on the same amounts and in the same manner and
at the same times as would have been the case if such option had
not been exercised and accompanied by a ruling to that effect
received from or published by the Internal Revenue Service; and
(5) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance
under this Section 1402 have been complied with and an
Opinion of Counsel to the effect that either (i) as a
result of a deposit pursuant to subsection (1) above and
the related exercise of the Company's option under this
Section 1402, registration is not required under the
Investment Company Act of 1940, as amended, by the Company
with respect to the trust funds representing such deposit
or by the Trustee for such trust funds or (ii) all
necessary registrations under said Act have been effected.
Notwithstanding any other provisions of this Section
1402, such defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations, which
may be imposed on the Company in connection therewith pursuant to
Section 301.
"Discharged" means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by,
and obligations under, the Debt Securities of such series and to
have satisfied all the obligations under this Indenture relating
to the Debt Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments
acknowledging the same), except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund
described in clause (1) above, payment of the principal of (and
premium, if any) and interest on such Debt Securities when such
payments are due, (B) the Company's obligations with respect to
the Debt Securities of such series under Sections 304, 305, 306,
1203 and (C) the rights, powers, trusts, duties and immunities of
the Trustee hereunder.
"U.S. Government Obligations" means securities that
are (i) direct obligations of the United States for the payment
of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States the timely payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States, that, in either case under
clauses (i) or (ii), are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository
receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. 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 U.S.
Government Obligation or the specific payment of interest on or
principal of the U.S.
Government Obligation evidenced by such depository receipt.
SECTION 1403. Deposited Moneys and U.S. Government
Obligations to be Held in Trust. All moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Section 1402
in respect of Debt Securities of a series shall be held in trust
and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either
<PAGE>
directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to
the Holders of such Debt Securities, of all sums due and to
become due thereon for principal (and premium, if any) and
interest, if any, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to
Section 1403 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law
is for the account of the Holders of such Outstanding Debt
Securities.
SECTION 1404. Repayment to Company. The Trustee and
any Paying Agent shall promptly pay or return to the Company upon
Company Request any moneys or U.S. Government Obligations held by
them at any time which, in the opinion of a nationally recognized
firm of independent public accountants as set forth in a written
certification thereof delivered to the Trustee, are in excess of
the amount which would then be required to be deposited to effect
a defeasance in accordance with this Article XIV.
The provisions of the last paragraph of Section 1203
shall apply to any money held by the Trustee or any Paying Agent
under this Article XIV that remains unclaimed for two years after
the Maturity of any series of Debt Securities for which money or
U.S. Government Obligations have been deposited pursuant to
Section 1402.
SECTION 1405. Subordination Provisions Inapplicable.
Notwithstanding anything contained herein by the contrary, any
money that shall have been deposited by the Company with the
Trustee pursuant to this Article XIV shall not be subject to the
provisions of Article XV of this Indenture respecting
subordination of the Debt Securities.
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 1501. Agreement to Subordinate. The Company,
for itself, its successors and assigns, covenants and agrees, and
each Holder of a Debt Security likewise covenants and agrees by
his or her acceptance thereof, that the obligation of the Company
to make any payment on account of the principal of (and premium,
if any) and interest on each and all of the Debt Securities shall
be subordinate and junior in right of payment to the Company's
obligations to the holders of Senior Indebtedness.
In the event of any insolvency, bankruptcy,
receivership, conservatorship, reorganization, readjustment of
debt, marshaling of assets and liabilities or similar proceedings
or any liquidation, dissolution or winding-up of or relating to
the Company as a whole, whether voluntary or involuntary, all
obligations of the Company to holders of Senior Indebtedness
shall be entitled to be paid in full before any payment, whether in
cash, property or otherwise, shall be made on any account of the
principal of (or premium, if any) or interest on any of the Debt
Securities. In the event of any such proceeding, after payment in
full of all sums owing with respect to Senior Indebtedness, the
Holders, together with the holders of Indebtedness Ranking on a
Parity with the Debt Securities, shall be entitled ratably to be
paid from the remaining assets of the Company the amounts at the
time due and owing on account of unpaid principal of (and
premium, if any) and interest, if any, on the Debt Securities
before any payment or other distribution, whether in cash,
property or otherwise, shall be made on account of any
Indebtedness Ranking Junior to the Debt Securities or any capital
stock. In addition, in the event of any such proceeding, if any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than
securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness
evidenced by the Debt Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or
readjustment), including any such payment or distribution that
may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the
payment of the Debt Securities, shall be received by the Trustee
or the Holders before all Senior Indebtedness is paid in full,
such payment or distribution shall be held (in trust if received
by such Holders) for the benefit of and shall be paid over to the
holders of such 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, for application to
the 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 subordination provisions of the foregoing paragraph
shall not be applicable to amounts at the time due and owing on
the Debt Securities of any series on account of the unpaid
principal of (or premium, if any) or interest, if any, on the
Debt Securities for the payment of which funds have been
deposited in trust with the Trustee or any Paying Agent or have
been set aside by the Company in trust in accordance with the
provisions of this Indenture; nor shall such provisions impair
any rights, interests, remedies or powers of any secured creditor
of the Company in respect of any security the creation of which
is not prohibited by the provisions of this Indenture.
The Holders of Debt Securities and the Trustee, in
respect of any claims of such Holders to payment of any
principal, premium or interest in respect of any Debt Securities,
by their acceptance thereof will be deemed to have waived any
right of set-off or counterclaim that such Holders or (subject to
Section 607) the Trustee, respectively, in such respect, might
otherwise have.
The securing of any Indebtedness Ranking on a Parity
with the Debt Securities or Indebtedness Ranking Junior to the
Debt Securities shall not be deemed to prevent such
<PAGE>
Indebtedness from constituting Indebtedness Ranking on a Parity
with the Debt Securities or Indebtedness Ranking Junior to the
Debt Securities, respectively.
The Company shall give prompt written notice to the
Trustee of any insolvency, bankruptcy, receivership,
conservatorship, reorganization, readjustment of debt, marshaling
of assets and liabilities or similar proceedings or any
liquidation, dissolution or winding-up or relating to the Company
as a whole, whether voluntary or involuntary, or of any default
with respect to any Senior Indebtedness that would prevent the
Trustee from making any payment in respect of the Debt Securities
under this Section. The Trustee, subject to the provisions of
Section 601, shall be entitled to assume that, and may act as if,
no such event has occurred unless a Responsible Officer of the
Trustee assigned to the Corporate Trust Office has received at
the Corporate Trust Office of the Trustee from the Company or any
one or more holders of Senior Indebtedness or any trustee
therefor (who shall have been certified or otherwise established
to the satisfaction of the Trustee to be such a holder or
trustee) written notice thereof. Upon any distribution of assets
of the Company referred to in this Article XV, the Trustee and
Holders shall be entitled to rely conclusively upon a certificate
of the liquidating trustee or agent, or any order or decree
entered by a court of competent jurisdiction, or other Person
making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness, the
amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article, and the Trustee, subject to the provisions of
Article VI, and the Holders of the Debt Securities shall be
entitled to rely upon a certificate of the liquidating trustee or
agent or other Person making any distribution to the Trustee or
to the Holders of the Securities for the purpose of ascertaining
the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent to this Article
XV. In the absence of any such liquidating trustee, agent or
other Person, the Trustee, subject to Section 601, shall be
entitled to rely conclusively upon a written notice by a Person
representing himself or herself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such
holder) as evidence that such Person is a holder of such Senior
Indebtedness (or is such a trustee or representative). In the
event that the Trustee determines, in its discretion, 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 Section 1501, the
Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, as to the extent to
which such Person is entitled to participate in such payment or
distribution, and as to other facts pertinent to the rights of
such Person under this Section 1501, and if such evidence is not
furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
SECTION 1502. Obligation of the Company Unconditional
and Payment Permitted if no Default. Subject to the provisions of
this Article XV and the terms of the Debt Securities, nothing
contained in this Article XV or elsewhere in this Indenture is
intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is
<PAGE>
absolute and unconditional, to pay to such Holders the principal
of (and premium, if any) and interest on the Debt Securities
when, where and as the same shall become due and payable, all in
accordance with the terms of the Debt Securities, or is intended
to or shall affect the relative rights of such Holders and
creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Debt Security from exercising all
remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article
XV of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise
of any such remedy.
SECTION 1503. Limitations on Duties to Holders of
Senior Indebtedness. In the event and during the continuation of
any default in the payment of principal of, or premium, if any,
or interest on, any Senior Indebtedness beyond any applicable
period of grace, or in the event that any event of default with
respect to any Senior Indebtedness shall have occurred and be
continuing, or would occur as a result of the payment referred to
hereinafter, permitting the holders of such Senior Indebtedness
(or a trustee on behalf of the holders thereof) to accelerate the
maturity thereof, then, unless and until such default or event of
default shall have been cured or waived or shall have ceased to
exist, no payment of principal of, or premium (if any) or
interest, if any, on the Debt Securities, or in respect of any
redemption, exchange, retirement, purchase or other acquisition
of any of the Debt Securities, shall be made by the Company.
SECTION 1504. Notice to Trustee of Facts Prohibiting Payments.
Notwithstanding any of the provisions of this Article XV or any
other provision of this Indenture, the Trustee shall not at any
time be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of funds to or by the
Trustee unless and until a Responsible Officer of the Trustee
assigned to its Corporate Trust Division shall have received at
the Corporate Trust Office written notice thereof from the
Company or from one or more holders of Senior Indebtedness or
from any trustee therefor who shall have been certified by the
Company or otherwise established to the reasonable satisfaction
of the Trustee to be such a holder or trustee; and, prior to the
receipt of such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if prior
to the fifth Business Day preceding the date upon which by the
terms hereof any such funds may become payable, or if prior to
the third Business Day preceding the date of the execution of
instruments pursuant to Section 401 acknowledging satisfaction
and discharge of this Indenture, the Trustee shall not have
received with respect to such funds the notice provided for in
this Section 1504, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and
authority to receive such moneys and/or apply the same to the
purpose for which they were received and shall not be affected by
any notice to the contrary that may be received by it on or after
such date; provided, however, no such application shall affect
the obligations under this Article XV of the Persons receiving
such moneys from the Trustee.
SECTION 1505. Application by Trustee of Moneys Deposited
With It. Anything in this Indenture to the contrary
notwithstanding, any deposit of a sum by the Company with the
Trustee or any agent (whether or not in trust) for any payment of
the principal of (and premium, if any) or interest on any Debt
Securities shall, except as provided in Section 1504, is subject
to the provisions of Section 1501.
SECTION 1506. Subrogation. Subject to the payment in
full of all Senior Indebtedness, the Holders of the Debt
Securities shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to such Senior Indebtedness
until the Debt Securities shall be paid in full, and none of the
payments or distributions to the holders of such Senior
Indebtedness to which the Holders of the Debt Securities or the
Trustee would be entitled except for the provisions of this
Article XV or of payments over, pursuant to the provisions of
this Article XV, to the holders of such Senior Indebtedness by
the Holders of such Debt Securities or the Trustee shall, as
among the Company, its creditors other than the holders of such
Senior Indebtedness, and the Holders of such Debt Securities, be
deemed to be a payment by the Company to or on account of such
Senior Indebtedness; it being understood that the provisions of
this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of such Debt
Securities, on one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 1507. Subordination Rights Not Impaired by Acts
or Omissions of Bank or Holders of Senior Indebtedness. No right
of any present or future holders of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof with which any such holder
may have or be otherwise charged. The holders of Senior
Indebtedness may, at any time or from time to time and in their
absolute discretion, change the manner, place or terms of
payment, change or extend the time of payment of, or renew or
alter, any such Senior Indebtedness, or amend or supplement any
instrument pursuant to which any such Senior Indebtedness is
issued or by which it may be secured, or release any security
therefor, or exercise or refrain from exercising any other of
their rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without notice
to or assent from the Holders or the Trustee and without
affecting the obligations of the Company, the Trustee or the
Holders under this Article XV.
SECTION 1508. Authorization of Trustee to Effectuate
Subordination of Debt Securities. Each Holder of a Debt Security,
by his or her acceptance thereof, authorizes and expressly
directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to effectuate, as between the
Holders and the holders of Senior Indebtedness, the subordination
provided in this Article XV. If, in the event of any proceeding
or other action relating to the Company referred to in the second
paragraph of Section 1501, a proper claim or proof of debt in the
form required in such proceeding or action is not filed by or on
behalf of the Holders prior to fifteen days before the expiration
of the time to file such claim or claims, then the holder or
holders of Senior Indebtedness shall have the right to file and
are hereby authorized to file an appropriate claim for and on
behalf of the Holders.
<PAGE>
SECTION 1509. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in
this Article XV in respect of any Senior Indebtedness at any time
held by it in its individual capacity to the same extent as any
other holder of such Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its
rights as such holder.
SECTION 1510. Article XV Not to Prevent Defaults
(Including Events of Default). The failure to make a payment
pursuant to the terms of the Debt Securities by reason of any
provision in this Article XV shall not be construed as preventing
the occurrence of a Default (including an Event of Default, if
any).
SECTION 1511. Article Applicable to Paying Agents. The
term "Trustee" as used in this Article XV shall (unless the
context shall otherwise require) be construed as extending to and
including each Paying Agent appointed by the Company and acting
hereunder within its meaning as fully for all intents and
purposes as if the Paying Agent were named in this Article XV in
addition to or in place of the Trustee; provided, however, that
Sections 1504 and 1509 shall not apply to the Company or any
Affiliate of the Company if the Company or such Affiliate acts as
Paying Agent.
* * * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
HSBC AMERICAS, INC.
By:
........................................
Name:
Title:
Attest:
........................................
Name:
Title:
SEAL
<PAGE>
BANKERS TRUST COMPANY, as Trustee
By: ........................................
Name:
Title
Attest
........................................
Name:
Title:
SEAL
<PAGE>
STATE OF NEW YORK, )
COUNTY OF _________, ) ss.:
On the __ day of ___, 1996, before me personally came
__________________, to me known, who, being by me duly sworn, did
depose and say that he is the ________________ of HSBC Americas,
Inc., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
Notary Public
SEAL
STATE OF NEW YORK, )
COUNTY OF __________,) ss.:
On the __ day of _____, 1996, before me personally
came ____________, to me known, who, being by me duly sworn, did
depose and say that he is an _______________ of Bankers Trust
Company, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
<PAGE>
Exhibit 5
Writer's Direct Dial: (212) 225-2280
October 24, 1996
HSBC Americas, Inc.
One Marine Midland Center
Buffalo, New York 14203
Re: HSBC Americas, Inc. (File No. 333-5801)
Ladies and Gentlemen:
We have acted as special counsel to HSBC Americas,
Inc., a Delaware corporation (the "Company"), in connection with
the Registration Statement on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as
amended (the "Act"), for the registration of (i) debt securities
of the Company, which may be senior (the "Senior Securities") or
subordinated (the "Subordinated Securities", and collectively
with the Senior Securities, the "Debt Securities"); and (ii)
shares of preferred stock of the Company (the "Preferred Stock",
and collectively with the Debt Securitites, the "Offered
Securities"). The Offered Securities being registered under the
Registration Statement will have an aggregate initial offering
price of up to $500,000,000, will be offered in one or more
series and may be offered on a continuing or delayed basis
pursuant to the provisions of Rule 415 under the Securities Act
of 1933, as amended (the "Act").
Unless otherwise provided in any prospectus supplement
forming a part of the Registration Statement relating to a
particular series of Debt Securities, the Senior Securities will
be issued under an Indenture dated as of October 24, 1996, as
amended or supplemented from time to time (the "Senior
Indenture), between the Company and Bankers Trust Company, as
Senior Trustee (the "Senior Trustee"), and the Subordinated
Securities will be issued under an Indenture dated as of October
24, 1996, as amended or supplemented from time to time (the
"Subordinated Indenture"), between the Company and Bankers Trust
Company, as Subordinated Trustee (the "Subordinated Trustee").
The Preferred Stock will be created by a Certificate of
Designations (the "Certificate of Designations") relating to a
particular series of Preferred Stock.
We have participated in the preparation of the
Registration Statement and have reviewed originals or copies
certified or otherwise identified to our satisfaction of all such
documents and corporate records of the Company and such other
instruments and other certificates of public officials, officers
and representatives of the Company and such other persons, and we
have made such investigations of law, as we have deemed
appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have
assumed the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents
submitted to us as copies. In addition, we have assumed and have
not verified the accuracy as to factual matters of each document
we have reviewed.
Based on the foregoing, and subject to the further
assumptions and qualifications set forth below, including the
assumptions that (i) the Registration Statement and any
amendments thereto (including post-effective amendments) will
have become effective and comply with all applicable laws; (ii)
the Registration Statement will be effective and will comply with
all applicable laws at the time the Offered Securities are
offered or issued as contemplated by the Registration Statement;
(iii) a Prospectus Supplement or term sheet will have been
prepared and filed with the Commission describing the Offered
Securities offered thereby and will comply with all applicable
laws; (iv) all Offered Securities will be issued and sold in
compliance with applicable federal and state securities laws and
in the manner stated in the Registration Statement and the
appropriate Prospectus Supplement or term sheet; and (v) a
definitive purchase, underwriting or similar agreement and any
other necessary agreement with respect to any Offered Securities
offered or issued will have been duly authorized and validly
executed and delivered by the Company and the other parties
thereto; it is our opinion that:
1. With respect to Debt Securities to be issued under
either the Senior Indenture or Subordinated Indenture, when (A)
the Senior Trustee or Subordinate Trustee, as applicable, is
qualified to act as Senior Trustee or Subordinated Trustee, as
applicable, under the Senior Indenture or Subordinated Indenture,
as applicable, (B) the Senior Trustee or Subordinated Trustee, as
applicable, has duly executed and delivered the Subordinated
Indenture or Senior Indenture, as applicable, (C) the Senior
Indenture or Subordinated Indenture, as applicable, has been duly
authorized and validly executed and delivered by the Company to
the Senior Trustee or Subordinated Trustee, as applicable, (D)
the Senior Indenture or Subordinate Indenture, as applicable, has
been duly qualified under the Trust Indenture Act of 1939, as
amended, (E) the Board of Directors of the Company or a duly
constituted and acting committee thereof (such Board of Directors
or committee being hereinafter referred to as the "Board") has
taken all necessary corporate action to approve the issuance and
terms of such Debt Securities, the terms of the offering thereof
and related matters, and (F) such Debt Securities have been duly
executed, authenticated, issued and delivered in accordance with
the provisions of the Senior Indenture or Subordinated Indenture,
as applicable, and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon
payment of the consideration therefor provided therein, such Debt
Securities will constitute the legal, valid, binding and
enforceable obligations of the Company, entitled to the benefits
of the Senior Indenture or the Subordinated Indenture, as
applicable; and
2. With respect to shares of Preferred Stock, when
both (A) the Board has taken all necessary corporate action to
approve the issuance and terms of the shares of Preferred Stock,
the terms of the offering thereof, and related matters, including
the adoption of a Certificate of Designation relating to such
Preferred Stock and the filing of the Certificate of Designation
with the Secretary of State of the State of Delaware and (B)
certificates representing the shares of Preferred Stock have been
duly executed, countersigned, registered and delivered either (i)
in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon
payment of the consideration therefor (not less than the par
value of the Preferred Stock) provided for therein or (ii) upon
conversion or exercise of any other Offered Security, in
accordance with the terms of such Offered Security or the
instrument governing such Offered Security providing for such
conversion or exercise as approved by the Board, for the
consideration approved by the Board (not less than the par value
of the Preferred Stock), then the Shares of Preferred Stock will
be validly issued by the Company and fully paid and
nonassessable.
Insofar as the foregoing opinions relate to the
legality, validity, binding effect or enforceability of any
agreement or obligation of the Company, we have assumed (a) that
each party to such agreement or obligation (other than the
Company) has satisfied those legal requirements that are
applicable to it to the extent necessary to make such agreement
or obligation enforceable against it, and (b) such opinions are
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general principles
of equity.
The foregoing opinions are limited to the law of the
State of New York and the General Corporation Law of the State of
Delaware.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to
this firm under the heading "Legal Opinions" in the Prospectus
included in the Registration Statement. In giving such consent,
we do not thereby admit that we are "experts" within the meaning
of the Act or the rules and regulations of the Securities and
Exchange Commission issued thereunder with respect to any part of
the Registration Statement, including this exhibit.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By /s/ James F. Munsell
--------------------------------
James F. Munsell, a Partner
Exhibit 23(a)
Independent Auditors' Consent
The Board of Directors
HSBC Americas, Inc.:
We consent to the use of our report dated January 26, 1996
incorporated herein by reference relating to HSBC Americas,
Inc.'s consolidated financial statements as of December 31, 1995
and 1994 and for each of the years in the three-year period ended
December 31, 1995 and the consolidated balance sheet of Marine
Midland Bank as of December 31, 1995 and 1994. Our opinion
referred to the Company's changes in accounting for income taxes
and postretirement benefits other than pensions in 1993, certain
investments in debt and equity securities in 1994 and loan
impairment in 1995.
In addition, we consent to the use of our report dated January
26, 1996 incorporated herein by reference relating to HSBC
Americas, Inc.'s supplemental consolidated financial statements
as of December 31, 1995 and 1994 and for each of the years in the
three-year period ended December 31, 1995 and the consolidated
balance sheet of Marine Midland Bank as of December 31, 1995 and
1994, which give retroactive effect to the combining of HSBC
Americas, Inc. and Oleifera Investments, Ltd. on January 1, 1996,
which has been accounted for in a manner similar to a pooling-of-
interests. Our opinion referred to the Company's changes in
accounting for income taxes and postretirement benefits other
than pensions in 1993, certain investments in debt and equity
securities in 1994 and loan impairment in 1995.
We consent to the reference to our firm under the heading Experts
in the Registration Statement.
/s/ KPMG Peat Marwick LLP
Buffalo, New York
October 22, 1996
Exhibit 23(b)
Independent Auditors' Consent
The Board of Directors
CTUS:
We consent to incorporation by reference in the registration
statement (No. 333-5801) on Form S-3 of our report dated January
12, 1996, relating to the consolidated statements of financial
condition of CTUS and subsidiaries as of December 31, 1995 and
1994, and the related consolidated statements of income, changes
in stockholder's equity, and cash flows for the years then ended,
which report appears in the Form 8-K of HSBC Americas, Inc. dated
October 22, 1996. Our report refers to the adoption of
Statements of Financial Accounting Standards (SFAS) Nos. 114 and
118 on January 1, 1995 and SFAS No. 115 on January 1, 1994.
/s/ KPMG Peat Marwick LLP
Rochester, New York
October 22, 1996
Power of Attorney
WHEREAS, HSBC Americas, Inc. proposes to file with the
Securities and Exchange Commission, under the Securities Act of
1933, a Registration Statement to register securities, including,
without limitation, debt securities and preferred stock.
NOW, THEREFORE, I in my capacity as Executive Vice
President, Chief Financial Officer of HSBC Americas, Inc., hereby
appoint Philip S. Toohey as my true and lawful attorney with
power to act with full power of substitution and resubstitution,
to execute in my name, place and stead, in my capacity as
Executive Vice President, Chief Financial Officer of HSBC
Americas, Inc., said Registration Statement and any amendments
thereto and all instruments necessary or incidental in connection
therewith, and to file same with the Securities and Exchange
Commission, all as fully to all intents and purposes as I might
or could do in person, and I hereby ratify and approve the acts
of said attorneys and each of them.
IN WITNESS WHEREOF, I have executed this instrument this
sixth day of June 1996.
/s/ Robert M. Butcher
----------------------------
Name: Robert M. Butcher
<PAGE>
Power of Attorney
WHEREAS, HSBC Americas, Inc. proposes to file with the
Securities and Exchange Commission, under the Securities Act of
1933, a Registration Statement to register securities, including,
without limitation, debt securities and preferred stock.
NOW, THEREFORE, I in my capacity as Executive Vice
President, Controller of HSBC Americas, Inc., hereby appoint
Philip S. Toohey as my true and lawful attorney with power to act
with full power of substitution and resubstitution, to execute in
my name, place and stead, in my capacity as Executive Vice
President, Controller of HSBC Americas, Inc., said Registration
Statement and any amendments thereto and all instruments
necessary or incidental in connection therewith, and to file same
with the Securities and Exchange Commission, all as fully to all
intents and purposes as I might or could do in person, and I
hereby ratify and approve the acts of said attorneys and each of
them.
IN WITNESS WHEREOF, I have executed this instrument this
sixth day of June 1996.
/s/ Gerald A. Ronning
----------------------------
Name: Gerald A. Ronning
<PAGE>
Power of Attorney
WHEREAS, HSBC Americas, Inc. proposes to file with the
Securities and Exchange Commission, under the Securities Act of
1933, a Registration Statement to register securities, including,
without limitation, debt securities and preferred stock.
NOW, THEREFORE, I in my capacity as a director of HSBC
Americas, Inc., hereby appoint Philip S. Toohey as my true and
lawful attorney with power to act with full power of substitution
and resubstitution, to execute in my name, place and stead, in my
capacity as a director of HSBC Americas, Inc., said Registration
Statement and any amendments thereto and all instruments
necessary or incidental in connection therewith, and to file same
with the Securities and Exchange Commission, all as fully to all
intents and purposes as I might or could do in person, and I
hereby ratify and approve the acts of said attorneys and each of
them.
IN WITNESS WHEREOF, I have executed this instrument this
sixth day of June 1996.
/s/ James H. Cleave
----------------------------
Name: James H. Cleave
<PAGE>
Power of Attorney
WHEREAS, HSBC Americas, Inc. proposes to file with the
Securities and Exchange Commission, under the Securities Act of
1933, a Registration Statement to register securities, including,
without limitation, debt securities and preferred stock.
NOW, THEREFORE, I in my capacity as a director of HSBC
Americas, Inc., hereby appoint Philip S. Toohey as my true and
lawful attorney with power to act with full power of substitution
and resubstitution, to execute in my name, place and stead, in my
capacity as a director of HSBC Americas, Inc., said Registration
Statement and any amendments thereto and all instruments
necessary or incidental in connection therewith, and to file same
with the Securities and Exchange Commission, all as fully to all
intents and purposes as I might or could do in person, and I
hereby ratify and approve the acts of said attorneys and each of
them.
IN WITNESS WHEREOF, I have executed this instrument this
sixth day of June 1996.
/s/ Northrup R. Knox
----------------------------
Name: Northrup R. Knox
<PAGE>
Power of Attorney
WHEREAS, HSBC Americas, Inc. proposes to file with the
Securities and Exchange Commission, under the Securities Act of
1933, a Registration Statement to register securities, including,
without limitation, debt securities and preferred stock.
NOW, THEREFORE, I in my capacity as a director of HSBC
Americas, Inc., hereby appoint Philip S. Toohey as my true and
lawful attorney with power to act with full power of substitution
and resubstitution, to execute in my name, place and stead, in my
capacity as a director of HSBC Americas, Inc., said Registration
Statement and any amendments thereto and all instruments
necessary or incidental in connection therewith, and to file same
with the Securities and Exchange Commission, all as fully to all
intents and purposes as I might or could do in person, and I
hereby ratify and approve the acts of said attorneys and each of
them.
IN WITNESS WHEREOF, I have executed this instrument this
sixth day of June 1996.
/s/ William R.P. Dalton
----------------------------
Name: William R.P. Dalton
<PAGE>
Power of Attorney
WHEREAS, HSBC Americas, Inc. proposes to file with the
Securities and Exchange Commission, under the Securities Act of
1933, a Registration Statement to register securities, including,
without limitation, debt securities and preferred stock.
NOW, THEREFORE, I in my capacity as a director of HSBC
Americas, Inc., hereby appoint Philip S. Toohey as my true and
lawful attorney with power to act with full power of substitution
and resubstitution, to execute in my name, place and stead, in my
capacity as a director of HSBC Americas, Inc., said Registration
Statement and any amendments thereto and all instruments
necessary or incidental in connection therewith, and to file same
with the Securities and Exchange Commission, all as fully to all
intents and purposes as I might or could do in person, and I
hereby ratify and approve the acts of said attorneys and each of
them.
IN WITNESS WHEREOF, I have executed this instrument this
thirteenth day of June 1996.
/s/ William Purves
----------------------------
Name: William Purves
<PAGE>
Power of Attorney
WHEREAS, HSBC Americas, Inc. proposes to file with the
Securities and Exchange Commission, under the Securities Act of
1933, a Registration Statement to register securities, including,
without limitation, debt securities and preferred stock.
NOW, THEREFORE, I in my capacity as a director of HSBC
Americas, Inc., hereby appoint Philip S. Toohey as my true and
lawful attorney with power to act with full power of substitution
and resubstitution, to execute in my name, place and stead, in my
capacity as a director of HSBC Americas, Inc., said Registration
Statement and any amendments thereto and all instruments
necessary or incidental in connection therewith, and to file same
with the Securities and Exchange Commission, all as fully to all
intents and purposes as I might or could do in person, and I
hereby ratify and approve the acts of said attorneys and each of
them.
IN WITNESS WHEREOF, I have executed this instrument this
seventh day of June 1996.
/s/ John R.M. Bond
----------------------------
Name: John R.H. Bond
_________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) __________
____________________
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (J.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
____________________
HSBC AMERICAS, INC.
(Exact name of obligor as specified in its charter)
Delaware 22-1093160
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
One Marine Midland Center
Buffalo, New York 14203
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
____ _______
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe
each such affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate
of Bankers Trust Company dated
August 7, 1990, Certificate of
Amendment of the Organization
Certificate of Bankers Trust
Company dated June 21, 1995 -
Incorporated herein by reference
to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-
65171, and Certificate of
Amendment of the Organization
Certificate of Bankers Trust
Company dated March 21, 1996,
copy attached.
Exhibit 2 - Certificate of Authority to
commence business - Incorporated
herein by reference to Exhibit 2
filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to
exercise corporate trust powers -
Incorporated herein by reference
to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-
21047.
Exhibit 4 - Existing By-Laws of Bankers Trust
Company, dated as amended on
October 19, 1995 - Incorporated
herein by reference to Exhibit 4
filed with Form T-1 Statement,
Registration No. 33-65171.
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company
required by Section 321(b) of the
Act. - Incorporated herein by
reference to Exhibit 4 filed with
Form T-1 Statement, Registration
No. 22-18864.
Exhibit 7 - A copy of the latest report of
condition of Bankers Trust
Company dated as of July 31,
1996.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, Bankers Trust Company, a
corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York,
on the 23rd day of October, 1996.
BANKERS TRUST COMPANY
By:______________________
Terence Rawlins
Assistant Treasurer
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, Bankers Trust Company, a
corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York,
on the 23rd day of October, 1996.
BANKERS TRUST COMPANY
By: /s/ Terence Rawlins
___________________
Terence Rawlins
Assistant Treasurer
<PAGE>
Legal Title of Bank: Bankers Trust Company
Address: 130 Liberty Street
City, State ZIP: New York, NY 10006
FDIC Certificate No.: 0 0 6 2 3
Call Date: 6/30/96 ST-BK: 36-4840 FFIEC 031
Vendor ID: D CERT: 00623 Page RC-I
11
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks June 30, 1996
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, reported the amount outstanding
as of the last business day of the quarter.
Schedule RC-Balance Sheet
C400
Dollar Amounts in Thousands RCFD Bil Mil Thou
________________________________________________________________
ASSETS
1. Cash and balance due from
depository institutions (from
Schedule RC-A):
a. Noninterest-bearing balances
and currency and coin(1)....... 0081 1,631,000 1.a.
b. Interest-bearing balances(2)... 0071 2,066,000 1.b.
2. Securities:
a. Held-to-maturity securities
(from Schedule RC-B, column A). 1754 0 2.a.
b. Available-for-sale securities
(from Schedule RC-B, column D). 1773 3,761,000 2.b.
3. Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank and
of its Edge and Agreement subsidiaries,
and in IBFs:
a. Federal funds sold............. 0276 5,162,000 3.a.
b. Securities purchased under
agreements to resell........... 0277 4,192,000 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C)...RCFD 2122 24,849,000 4.a.
b. LESS: Allowance for loan and
lease losses..................RCFD 3123 923,000 4.b.
c. LESS: Allocated transfer
risk reserve..................RCFD 3128 0 4.c.
d. Loans and leases, net of unearned
income, allowance, and reserve
(item 4.a minus 4.b and 4.c)... 2125 23,926,000 4.d.
5. Assets held in trading accounts.... 3545 33,052,000 5.
6. Premises and fixed assets
(including capitalized leases)..... 2145 858,000 6.
7. Other real estate owned (from
Schedule RC-M)..................... 2150 216,000 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M)..... 2130 271,000 8.
9. Customers' liability to this bank
on acceptances outstanding......... 2155 572,000 9.
10. Intangible assets (from Schedule
RC-M).............................. 2143 18,000 10.
11. Other assets (from Schedule RC-F).. 2160 7,612,000 11.
12. Total assets (sum of items 1
through 11)........................ 2170 83,337,000 12.
___________________
_______________
(1) Includes cash items in process of collection and unposted
debits.
(2) Includes time certificates of deposit not held in trading
accounts.
<PAGE>
Legal Title of Bank: Bankers Trust Company
Address: 130 Liberty Street
City, State, Zip: New York, NY 10006
FDIC Certificate No.: 0 0 6 2 3
Call Date: 6/30/96 ST-BK: 36-4840 FFIEC 031
Vendor ID: D CERT: 00623 Page RC-2
12
Schedule RC - Continued
Dollar Amounts in Thousands Bil Mil Thou
_______________________________________________________________________________
LIABILITIES
13. Deposits:
a. In domestic offices (sum
of totals of columns A
and C from Schedule RC-E,
part 1) RCON 2200 9,040,000
(1) Noninterest-
bearing(1) RCON 6631 3,569,000
(2) Interest-bearing..
RCON 6636 5,471,000
b. In foreign office, Edge and Agreement
subsidiaries, and IBFs (from
Schedule RC-E part II) RCFN 2200 19,648,000 13.b.
(1) Noninterest-
bearing RCFN 6631 494,000
(2) Interest-bearing
RCFN 6636 19,154,000
14. Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in
IBFs;
a. Federal funds purchased............ RCFD 0278 2,564,000
b. Securities sold under agreements
to repurchase...................... RCFD 0279 790,000 14.b.
15. a. Demand notes issued to the
U.S. Treasury...................... RCON 2840 0
b. Trading liabilities................ RCFD 3548 18,177,000 15.b.
16. Other borrowed money:
a. With original maturity of one year
or less............................ RCFD 2332 16,421,000 16.a.
b. With original maturity of more
than one year...................... RCFD 2333 3,388,000 16.b.
17. Mortgage indebtedness and obligations
under capitalized leases............... RCFD 2910 31,000 17.
18. Bank's liability on acceptances
executed and outstanding............... RCFD 2920 572,000
19. Subordinated notes and debentures...... RCFD 3200 1,227,000
20. Other liabilities (from Schedule RC-G). RCFD 2930 6,911,000
21. Total liabilities (sum of items 13
through 20)............................ RCFD 2948 78,769,000 21.
22. Limited-life preferred stock and
related surplus........................ RCFD 3282 0
EQUITY CAPITAL
23. Perpetual preferred stock and
related surplus........................ RCFD 3838 500,000
24. Common stock........................... RCFD 3230 1,002,000
25. Surplus (exclude all surplus related
to preferred stock).................... RCFD 3839 528,000
26. a. Undivided profits and capital
reserves RCFD 3632 2,915,000
b. Net unrealized holding gains
(losses) on available-for-sale
securities......................... RCFD 8434 ( 5,000) 26.b.
27. Cumulative foreign currency
translation adjustments................ RCFD 3284 ( 372,000) 27.
28. Total equity capital (sum of items
23 through 27)......................... RCFD 3210 4,568,000 28.
29. Total liabilities, limited-life
preferred stock, and equity capital
(sum of Items 21, 22, and 28) RCFD 3300 83,337,000 29.
_______________________________
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of
the statement below that best describes the
most comprehensive level of auditing work
performed for the bank by independent external Number
auditors as of any date during 1995............RCFD 6724 2
1 - Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 - Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 - Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 - Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 - Review of the bank's financial statements by external auditors
6 - Compilation of the bank's financial statements by external auditors
7 - Other audit procedures (excluding tax preparation work)
8 - No external audit work
_______________
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
State of New York,
Banking Department
I, PETER M. PHILBIN, Deputy Superintendent of Bank of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under
Section 8005 of the Banking Law," dated March 20, 1996, providing for an
increase in authorized capital stock from $1,351,666,670 consisting of
85,166,667 shares with a par value of $10 each designated as Common Stock and
500 shares with a par value of $1,000,000 each designated as Series Preferred
Stock to $1,501,666,670 consisting of 100,166,670 shares with a par value of
$10 each designated as Common Stock and 500 shares with a par value of
$1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 21st day of March in the Year of Our Lord one thousand
nine hundred and ninety-six
Peter M. Philbin
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, so hereby
certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock
in conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of share into which the capital stock
shall be divided, the par value of the shares and the capital stock
outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is
hereafter to have is One Billion, Three Hundred Fifty One Million, Six
Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars
($1,351,666,670), Divided into Eighty-Five Million , One Hundred
Sixty-Six Thousand, Six Hundred Sixty-Seven ($5,166,667) shares with a
par value of $10 each designated as Common Stock and 500 shares with a
par value of One Million Dollars ($1,000,000) each designated as
Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is One Billion, Five Hundred One Million, Six Hundred Sixty-
Six Thousand, Six Hundred Seventy Dollars ($1,501,666,670), divided
into One Hundred Million, One Hundred Sixty Six Thousand, six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
6. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 20th
day of March, 1996.
James T. Byrne
---------------
James T. Byrne
Managing Director
Lea Lahtinen
---------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
----------------
Lea Lahtinen
Sworn to before me this 20th day
of March, 1996.
Sandra L. West
- --------------------
Notary Public
SANDRA L. WEST Counterpart filed in
Notary Public of New York Office of the Super-
No. 31-4942101 intendant of Banks,
Qualified in New York County State of New York,
Commission Expires September 19, 1996 This 21st day of
March , 1996
