<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 13, 1999
REGISTRATION NO. 333-69281
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NORDSTROM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
WASHINGTON 91-0515058
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
1617 SIXTH AVENUE, 6TH FLOOR
SEATTLE, WASHINGTON 98101
(206) 628-2111
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MICHAEL A. STEIN
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
NORDSTROM, INC.
1617 SIXTH AVENUE
SEATTLE, WA 98101
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
With a copy to:
LAWRENCE J. STEELE
LANE POWELL SPEARS LUBERSKY LLP
1420 FIFTH AVENUE, SUITE 4100
SEATTLE, WASHINGTON 98101-2338
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [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 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION. DATED JANUARY 13, 1999.
Prospectus Supplement to Prospectus Dated , 1999.
$200,000,000
NORDSTROM
% Senior Notes due , 2009
------------------------
Nordstrom, Inc. will pay interest on the Notes on and
of each year. The first such payment will be made on
, 1999. The Notes will be issued only in denominations of $1,000
and integral multiples of $1,000.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
<TABLE>
<CAPTION>
PER NOTE TOTAL
-------- -----------
<S> <C> <C>
Initial public offering price............................... % $
Underwriting discount....................................... % $
Proceeds, before expenses, to Nordstrom, Inc. .............. % $
</TABLE>
The initial public offering price set forth above does not include accrued
interest, if any. Interest on the Notes will accrue from , 1999 and
must be paid by the purchaser if the Notes are delivered after ,
1999.
------------------------
The underwriters expect to deliver the Notes in book-entry form only
through the facilities of The Depository Trust Company against payment in New
York, New York on , 1999.
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON
MERRILL LYNCH & CO.
------------------------
Prospectus Supplement dated , 1999.
<PAGE> 3
USE OF PROCEEDS
Nordstrom, Inc. ("Nordstrom") will use the net proceeds from the sale of
the notes offered hereby (the "Notes") (after deduction of underwriting
discounts and commissions and expenses payable by Nordstrom) to reduce short
term indebtedness incurred for working capital and for general corporate
purposes. At January 7, 1999, Nordstrom's short-term indebtedness carried a
weighted average interest cost of 5.29%.
THE COMPANY
Nordstrom is a specialty retailer selling a wide selection of apparel,
shoes and accessories for women, men and children. Most of Nordstrom's
merchandise categories are offered in each of its 68 large fashion specialty
stores currently located in 21 states. In addition, Nordstrom operates 25
clearance stores in 11 states under the name "Nordstrom Rack," one clearance
store in Arizona under the name "Last Chance Shoes and Apparel," three specialty
stores in California and New York under the name "Faconnable" and two shoe
stores in Hawaii. Nordstrom's marketing philosophy is to offer a wide selection
of merchandise, to create customer loyalty by providing a high level of customer
service and to respond rapidly to local market conditions and fashion trends
through decentralized buying and merchandise selection. Nordstrom's executive
offices are located at 1617 Sixth Avenue, Seattle, Washington 98101, telephone
(206) 628-2111.
S-2
<PAGE> 4
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data presented below under the captions
"Operating Results" and "Balance Sheet Data" for, and as of the end of, each of
the years in the five-year period ended January 31, 1998 have been derived from
the audited consolidated financial statements of Nordstrom. The selected
consolidated financial data presented below under the captions "Operating
Results" and "Balance Sheet Data" as of and for the nine month periods ended
October 31, 1997 and 1998 have been derived from unaudited interim condensed
consolidated financial information of Nordstrom. In the opinion of management,
the unaudited interim condensed consolidated financial information has been
prepared on the same basis as the audited consolidated financial statements and
includes all adjustments, consisting only of normal recurring adjustments,
necessary to fairly state the information set forth therein. The results of
operations for the nine months ended October 31, 1998 are not necessarily
indicative of results to be expected for the full fiscal year or for any future
period. This information is qualified in its entirety by and should be read in
conjunction with the detailed information and financial statements and
applicable management's discussion and analysis included in Nordstrom's Annual
Report on Form 10-K for the year ended January 31, 1998 and Quarterly Reports on
Form 10-Q for the quarters ended April 30, 1998, July 31, 1998 and October 31,
1998.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
OCTOBER 31,
FISCAL YEAR ENDED JANUARY 31, (UNAUDITED)
-------------------------------------------------------------- -----------------------
1994 1995 1996 1997 1998 1997 1998
---------- ---------- ---------- ---------- ---------- ---------- ----------
(DOLLAR AMOUNTS IN THOUSANDS, EXCEPT PER SQUARE FOOT AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING RESULTS:
Net sales..................... $3,589,938 $3,894,478 $4,113,517 $4,453,063 $4,851,624 $3,396,876 $3,581,848
Net earnings.................. 140,418 202,958 165,112 147,505 186,213 127,080 140,174
BALANCE SHEET DATA (AT PERIOD
END):
Total assets.................. $2,177,481 $2,396,783 $2,732,619 $2,702,507 $2,865,163 $3,126,308 $3,145,480
Notes payable................. 40,337 87,388 232,501 163,770 263,767 241,348 344,483
Long-term debt including
current portion............. 438,574 373,910 439,943 380,632 420,865 472,044 619,398
Shareholders' equity.......... 1,166,504 1,343,800 1,422,972 1,473,192 1,475,058 1,484,029 1,248,069
OTHER DATA:
Ratio of earnings to fixed
charges (1)................. 4.95x 6.79x 5.14x 4.99x 5.91x 5.43x 5.11x
Number of stores (at period
end)........................ 74 76 78 83 92 90 99
Total square footage (at
period end)................. 9,282,000 9,998,000 10,713,000 11,754,000 12,614,000 12,592,000 13,689,000
Net sales per square foot..... $ 383 $ 395 $ 382 $ 377 $ 384 $ 364 $ 347
</TABLE>
- ---------------
(1) For the purpose of this ratio, earnings consist of earnings before income
taxes plus fixed charges less capitalized interest. Fixed charges consist of
interest expense, capitalized interest and the estimated interest portion of
rent expense.
S-3
<PAGE> 5
DESCRIPTION OF THE NOTES
GENERAL
The Notes will be issued under an Indenture dated , 1999
between Nordstrom and Norwest Bank Colorado, National Association, as trustee.
Provisions of the Indenture are more fully described under the heading
"Description of the Debt Securities" in the accompanying prospectus.
The Notes will mature on , 2009. Interest on the Notes will
accrue from , 1999 and will be payable semiannually, on each
and , beginning , 1999, to the persons
in whose names the Notes are registered at the close of business on
or before the payment date at the annual rate of %.
Nordstrom will issue the Notes only in book-entry form through the
facilities of The Depository Trust Company, as depositary (the "Global Notes").
The Notes will be in denominations of $1,000 and integral multiples thereof.
Transfers or exchanges of beneficial interests in Global Notes in book-entry
form may be effected only through a participating member of the depositary. See
"Global Notes." As described in the accompanying prospectus, under certain
circumstances Notes may be issued in certificated form in exchange for the
Global Notes. In the event that Notes are issued in certificated form, they may
be transferred or exchanged at the offices described in the immediately
following paragraph.
Payments on the Global Notes will be made to the depositary. If the Notes
are issued in certificated form, Nordstrom will pay any principal and interest
to the office of the trustee at Norwest Bank Minnesota, N.A., Corporate Trust
Operations, Sixth Street and Marquette Avenue, Minneapolis, Minnesota
55479-0113. Notes issued in certificated form will be registrable at the office
of the Trustee, and the Notes will be exchangeable for Notes having identical
terms and provisions at the same office. Nordstrom will maintain the option,
however, of paying interest on Notes issued in certificated form by check mailed
to the address of the person entitled to such interest as shown on the
securities register.
The Notes cannot be redeemed prior to maturity and there is no sinking fund
for the Notes.
GLOBAL NOTES
The Notes will be issued in whole or in part in the form of one or more
Global Notes. The Global Notes will be deposited with, or on behalf of the
depositary, and registered in the name of a nominee of the depositary. Except
under the limited circumstances described in the accompanying prospectus under
the heading "Description of Debt Securities -- Global Securities," owners of
beneficial interests in Global Notes will not be entitled to physical delivery
of Notes in certificated form. Global Notes may not be transferred except as a
whole by the depositary to a nominee of the depositary. Global Notes may also be
transferred by a nominee of the depositary to the depositary or another nominee
of the depositary. The depositary or any nominee may transfer Global Notes to a
successor of the depositary or a nominee of such successor.
The depositary has advised Nordstrom and the underwriters as follows: The
depositary is a limited-purpose trust company organized under the laws of the
State of New York, 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. The depositary was created to hold securities
of its participants and to facilitate the clearance and settlement of securities
transactions among its participants in such securities through electronic
book-entry changes in accounts of the participants, thereby eliminating the need
for physical movements of securities certificates. The depositary's participants
include securities brokers and dealers (including the underwriters), banks,
trust companies, clearing corporations, and certain other
S-4
<PAGE> 6
organizations, some of whom (and/or their representatives) own the depositary.
Access to the depositary's book-entry system is also 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.
Persons who are not participants may beneficially own securities held by the
depositary only through participants.
The depositary has further advised Nordstrom that the depositary's
management is aware that some computer applications, systems, and the like for
processing data that are dependent upon calendar dates, including dates before,
on, and after January 1, 2000, may encounter "Year 2000 problems." The
depositary has informed its participants and other members of the financial
community that it has developed and is implementing a program so that its
systems, as the same relate to the timely payment of distributions (including
principal and interest payments) to security holders, book-entry deliveries, and
settlement of trades within the depositary, continue to function appropriately.
This program includes a technical assessment and a remediation plan, each of
which is complete. Additionally, the depositary's plan includes a testing phase,
which is expected to be completed within appropriate time frames.
However, the depositary's ability to perform properly its services is also
dependent upon other parties, including but not limited to issuers and their
agents, as well as the depositary's direct and indirect participants and third
party vendors from whom the depositary licenses software and hardware, and third
party vendors on whom the depositary relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. The depositary has informed its participants and other members of
the financial community that it is contacting (and will continue to contact)
third party vendors from whom the depositary acquires services to: (i) impress
upon them the importance of such services being Year 2000 compliant; and (ii)
determine the extent of their efforts for Year 2000 remediation (and, as
appropriate, testing) of their services. In addition, the depositary is in the
process of developing such contingency plans as it deems appropriate.
According to the depositary, the foregoing information with respect to the
depositary has been provided to its participants and other members of the
financial community for informational purposes only and is not intended to serve
as a representation, warranty, or contract modification of any kind.
S-5
<PAGE> 7
UNDERWRITING
Nordstrom and the underwriters for the offering (the "Underwriters") named
below have entered into an underwriting agreement with respect to the Notes.
Subject to certain conditions, each Underwriter has severally agreed to purchase
the principal amount of Notes indicated in the following table.
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
UNDERWRITERS OF NOTES
------------ ----------------
<S> <C>
Goldman, Sachs & Co. ....................................... $
Credit Suisse First Boston Corporation......................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated..................................
----------------
Total:............................................... $
================
</TABLE>
------------------------
Notes sold by the Underwriters to the public will initially be offered at
the initial public offering price set forth on the cover of this prospectus
supplement. Any Notes sold by the Underwriters to securities dealers may be sold
at a discount from the initial public offering price of up to % of the
principal amount of the Notes. Any such securities dealers may resell any Notes
purchased from the Underwriters to certain other brokers or dealers at a
discount from the initial public offering price of up to % of the principal
amount of the Notes. If all the Notes are not sold at the initial offering
price, the Underwriters may change the offering price and the other selling
terms.
The Notes are a new issue of securities with no established trading market.
Nordstrom 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.
In connection with the offering of the Notes, the Underwriters may purchase
and sell the Notes in the open market. These transactions may include short
sales, stabilizing transactions and purchases to cover positions created by
short sales. Short sales involve the sale by the Underwriters of a greater
aggregate principal amount of Notes than they are required to purchase in the
offering. Stabilizing transactions consist of certain bids or purchases made for
the purpose of preventing or retarding a decline in the market price of the
Notes while the offering is in progress.
The Underwriters also may impose a penalty bid. This occurs when a
particular Underwriter repays to the Underwriters a portion of the underwriting
discount received by it because the Underwriters have repurchased Notes sold by
or for the account of such Underwriter in stabilizing or short covering
transactions.
These activities by the Underwriters may stabilize, maintain or otherwise
affect the market price of the Notes. As a result, the price of the Notes may be
higher than the price that otherwise might exist in the open market. If these
activities are commenced, they may be discontinued by the Underwriters at any
time. These transactions may be effected in the over-the-counter market or
otherwise.
In the ordinary course of business, certain of the Underwriters have in the
past performed, and may in the future perform, investment banking services for
Nordstrom for which they have received, and may in the future receive, fees or
other compensation.
Nordstrom estimates that its share of the total expenses of the offering,
excluding underwriting discounts and commissions, will be approximately
$ .
Nordstrom has agreed to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
S-6
<PAGE> 8
LEGAL MATTERS
Lane Powell Spears Lubersky LLP, Seattle, Washington, will pass upon the
validity of the Notes for Nordstrom. D. Wayne Gittinger, a partner in that firm,
is also a director of Nordstrom. At December 18, 1998, members of the firm
beneficially owned, directly or indirectly, a total of approximately 10,600,000
shares of Nordstrom's common stock. Brown & Wood LLP, New York, New York, will
pass upon certain legal matters relating to the Notes for the Underwriters.
S-7
<PAGE> 9
(This page has been left blank intentionally.)
<PAGE> 10
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JANUARY 13, 1999
PROSPECTUS
BY THIS PROSPECTUS
NORDSTROM, INC.
MAY OFFER
DEBT SECURITIES
DEBT WARRANTS
COMMON STOCK
COMMON STOCK WARRANTS
CURRENCY WARRANTS
------------------------
COMMON STOCK TRADING SYMBOL
NASDAQ NATIONAL MARKET "NOBE"
------------------------
We will provide the specific terms of these securities in supplements to
this prospectus. The prospectus supplement may also add, update or change
information contained or incorporated by reference in this prospectus. You
should read this prospectus and any prospectus supplement carefully before you
invest.
This prospectus may not be used to consummate sales of offered securities
unless accompanied by a prospectus supplement.
Our principal executive offices are located at 1617 Sixth Avenue, Seattle,
Washington 98101, telephone number (206) 628-2111.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
------------------------
The date of this prospectus is , 1999.
<PAGE> 11
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission ("SEC"). You may read
and copy any reports, proxy statements and other information filed by us at the
SEC's Public Reference Rooms at (a) 450 Fifth Street, N.W., Washington, D.C.
20549; (b) Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; and (c) Seven World Trade Center, New York, New York 10048.
You can also request copies of these documents, upon payment of a duplicating
fee, by writing to the Public Reference Section of the SEC at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the SEC's Public Reference Rooms. Our SEC
filings are also available to the public on the SEC's Internet site
(http://www.sec.gov).
We have filed a registration statement on Form S-3 with the SEC covering
the securities described in this prospectus. For further information with
respect to us and those securities, you should refer to our registration
statement and its exhibits. We have summarized certain key provisions of
contracts and other documents that we refer to in this prospectus. Because a
summary may not contain all the information that is important to you, you should
review the full text of the document. We have included copies of these documents
as exhibits to our registration statement.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to another document that we filed with the SEC. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), until we sell all of the securities.
- Our Annual Report to Shareholders, Form 10-K and Form 10-KA for the
fiscal year ended January 31, 1998;
- Our Quarterly Reports on Form 10-Q for the quarters ended April 30, 1998,
July 31, 1998, and October 31, 1998;
- Our Current Report on Form 8-K dated March 11, 1998.
You may request a copy of these filings (other than exhibits) at no cost,
by writing or telephoning us at 1321 Second Avenue, Seattle, Washington 98101,
telephone (206) 233-6248, attention Corporate Secretary.
You should rely only on the information contained or incorporated by
reference in this prospectus, any prospectus supplement or any pricing
supplement. We have not authorized anyone to provide you with any other
information. We are not making an offer of these securities in any state where
the offer is not permitted. You should not assume that the information in this
prospectus, any accompanying prospectus supplement or any document incorporated
by reference is accurate as of any date other than the date on the front of the
document.
2
<PAGE> 12
NORDSTROM, INC.
Nordstrom, Inc. ("Nordstrom") is a specialty retailer selling a wide
selection of apparel, shoes and accessories for women, men and children. Most of
Nordstrom's merchandise categories are offered in each of its 68 large fashion
specialty stores currently located in 21 states. In addition, Nordstrom operates
25 clearance stores in 11 states under the name "Nordstrom Rack," one clearance
store in Arizona under the name "Last Chance Shoes and Apparel," three specialty
stores in California and New York under the name "Faconnable" and two shoe
stores in Hawaii. Nordstrom's marketing philosophy is to offer a wide selection
of merchandise, to create customer loyalty by providing a high level of customer
service and to respond rapidly to local market conditions and fashion trends
through decentralized buying and merchandise selection. Nordstrom's executive
offices are located at 1617 Sixth Avenue, Seattle, Washington 98101, telephone
(206) 628-2111.
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement,
Nordstrom will use the net proceeds from the sale of any securities offered by
this prospectus for general corporate purposes. Examples of general corporate
purposes include additions to working capital, repayment of existing debt,
acquisitions, repurchases of common stock and store expansion.
RATIO OF EARNINGS TO FIXED CHARGES
The following table contains Nordstrom's ratio of earnings to fixed charges
for each of the periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED JANUARY 31, OCTOBER 31,
------------------------------------- -------------
1994 1995 1996 1997 1998 1997 1998
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges...................... 4.95x 6.79x 5.14x 4.99x 5.91x 5.43x 5.11x
</TABLE>
- -------------------------
For purposes of this ratio, earnings consist of earnings before income
taxes plus fixed charges less capitalized interest. Fixed charges consist of
interest expense, capitalized interest, and the estimated interest portion of
rent expense.
3
<PAGE> 13
GENERAL DESCRIPTION OF THE OFFERED SECURITIES
Nordstrom may from time to time offer under this prospectus, separately or
together: (i) unsecured debt securities ("Debt Securities"), which may be senior
debt securities, ("Senior Debt Securities") or subordinated debt securities
("Subordinated Debt Securities"), (ii) warrants to purchase the Debt Securities
("Debt Warrants"), (iii) shares of Common Stock, no par value, (iv) warrants to
purchase shares of Common Stock ("Stock Warrants") and (v) warrants to receive
from Nordstrom the cash value in U.S. dollars of the right to purchase
("Currency Call Warrants") or to sell ("Currency Put Warrants") such foreign
currency or currency units as shall be designated by Nordstrom at the time of
offering (such securities are collectively referred to herein as the "Offered
Securities"). The aggregate offering price of Offered Securities offered by
Nordstrom by a prospectus supplement will not exceed $600,000,000.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the Debt Securities sets forth the material
terms and provisions of the Debt Securities to which any prospectus supplement
may relate. The Senior Debt Securities are to be issued under an Indenture (the
"Senior Indenture"), between Nordstrom and Norwest Bank Colorado, National
Association, as Trustee (the "Trustee"), a copy of which is filed as an exhibit
to the registration statement of which this prospectus is a part. The
Subordinated Debt Securities are to be issued under an Indenture between
Nordstrom and the Trustee (the "Subordinated Indenture"), a copy of the form of
which is filed as an exhibit to the registration statement of which this
prospectus is a part. The Senior Indenture and the Subordinated Indenture are
sometimes referred to herein collectively as the "Indentures" and each
individually as an "Indenture." The particular terms of the Debt Securities
offered by any prospectus supplement (the "Offered Debt Securities") and the
extent, if any, to which such general provisions may apply to the Offered Debt
Securities, will be described in the prospectus supplement relating to such
Offered Debt Securities.
The following summaries of the material provisions of the Indentures and
the Debt Securities do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions of the
Indentures, including the definitions therein of certain terms, and such Debt
Securities. Wherever particular articles, sections or defined terms of an
Indenture are referred to, it is intended that such articles, sections or
defined terms shall be incorporated herein by reference, and the statement in
connection with which such reference is made is qualified in its entirety by
such reference. The Indentures are substantially identical, except for certain
covenants of Nordstrom and provisions relating to subordination.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provide that Debt Securities may
be issued thereunder from time to time in one or more series. (Section 3.1) The
Indentures do not limit the amount of other indebtedness or Debt Securities,
other than certain secured indebtedness as described below, which may be issued
by Nordstrom or its Subsidiaries.
Unless otherwise provided in a prospectus supplement, the Senior Debt
Securities will be unsecured obligations of Nordstrom and will rank on a parity
with all other unsecured
4
<PAGE> 14
and unsubordinated indebtedness of Nordstrom. The Subordinated Debt Securities
will be unsecured obligations of Nordstrom, subordinated in right of payment to
the prior payment in full of all Senior Indebtedness (which term includes Senior
Debt Securities) of Nordstrom as described below under "Subordination of
Subordinated Debt Securities" and in the applicable prospectus supplement.
The prospectus supplement relating to the particular Debt Securities
offered thereby will describe the following terms of the Offered Debt
Securities:
<TABLE>
<S> <C>
(i) the title of the Offered Debt Securities and the series in
which such Offered Debt Securities shall be included, which
may include medium-term notes;
(ii) any limit upon the aggregate principal amount of the Offered
Debt Securities;
(iii) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the
principal of such Offered Debt Securities will be payable;
(iv) the rate or rates at which the Offered 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 (including, if applicable, any remarketing option
or similar method), and the date or dates from which such
interest, if any, will accrue or the method by which such
date or dates will be determined;
(v) the date or dates on which such interest, if any, on the
Offered Debt Securities will be payable and any regular
record dates applicable to the date or dates on which
interest will be so payable;
(vi) whether and under what circumstances Additional Amounts on
such Offered Securities or any of them will be payable and,
if so, whether and on what terms Nordstrom will have the
option to redeem such Offered Debt Securities in lieu of
paying such Additional Amounts (and the terms of such
option);
(vii) the place or places where the principal of, any premium or
interest on or any Additional Amounts with respect to such
Offered Debt Securities will be payable, any of such Offered
Debt Securities that are Registered Securities may be
surrendered for registration of transfer or exchange, and
any such Offered Debt Securities may be surrendered for
conversion or exchange;
(viii) whether any of such Offered Debt Securities are to be
redeemable at the option of Nordstrom and, if so, the date
or dates on which, the period or periods within which, the
price or prices at which and the other terms and conditions
upon which such Offered Debt Securities may be redeemed, in
whole or in part, at the option of Nordstrom;
(ix) whether Nordstrom will be obligated to redeem or purchase
any of such Offered Debt Securities pursuant to any sinking
fund or analogous provision or at the option of any holder
thereof and, if so, the date or dates on which, the period
or periods within which, the price or prices at which and
the other terms and conditions upon which such Offered Debt
Securities will be redeemed or purchased, in whole or in
part, pursuant to such obligation, and any provisions for
the remarketing of such Offered Securities so redeemed or
purchased;
</TABLE>
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<TABLE>
<S> <C>
(x) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered
Securities will be issuable and, if other than a
denomination of $5,000, the denominations in which any
Bearer Securities will be issuable;
(xi) whether the Offered Debt Securities will be convertible into
shares of Common Stock and/or exchangeable for other
securities and, if so, the terms and conditions upon which
such Offered Debt Securities will be so convertible or
exchangeable;
(xii) if other than the principal amount, the portion of the
principal amount (or the method by which such portion will
be determined) of such Offered Debt Securities that will be
payable upon declaration of acceleration of the Maturity
thereof;
(xiii) if other than United States dollars, the currency of
payment, including composite currencies, of the principal
of, any premium or interest on or any Additional Amounts
with respect to any of such Offered Debt Securities;
(xiv) whether the principal of, any premium or interest on or any
Additional Amounts with respect to such Offered Debt
Securities will be payable, at the election of Nordstrom or
a holder, in a currency other than that in which such
Offered Debt Securities are stated to be payable and the
date or dates on which, the period or periods within which,
and the other terms and conditions upon which, such election
may be made;
(xv) any index, formula or other method used to determine the
amount of payments of principal of, any premium or interest
on or any Additional Amounts with respect to such Offered
Debt Securities;
(xvi) whether such Offered Debt Securities are to be issued in the
form of one or more global securities and, if so, the
identity of the Depositary for such global security or
securities;
(xvii) whether such Offered Debt Securities are Senior Debt
Securities or Subordinated Debt Securities and, if
Subordinated Debt Securities, the specific subordination
provisions applicable thereto;
in the case of Subordinated Debt Securities, the relative
(xviii) degree, if any, to which such Subordinated Debt Securities
of the series shall be senior to or be subordinated to other
series of Subordinated Debt Securities or other indebtedness
of Nordstrom in right of payment, whether such other series
of Subordinated Debt Securities or other indebtedness are
outstanding or not;
(xix) any deletions from, modifications of or additions to the
Events of Default or covenants of Nordstrom with respect to
such Offered Debt Securities;
(xx) whether certain provisions relating to discharge, defeasance
and covenant defeasance described below under "Discharge,
Defeasance and Covenant Defeasance" will be applicable to
such Offered Debt Securities;
(xxi) whether any of such Offered Debt Securities are to be issued
upon the exercise of warrants, and the time, manner and
place for such Offered Debt Securities to be authenticated
and delivered; and
(xxii) any other terms of such Offered Debt Securities and any
other deletions from or modifications or additions to the
applicable Indenture in respect of such Offered Debt
Securities. (Section 3.1)
</TABLE>
Unless otherwise provided in the prospectus supplement relating to any
Offered Debt Securities, principal, premium, interest and Additional Amounts, if
any, will be payable at
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<PAGE> 16
the office or agency maintained by Nordstrom for such purposes (initially the
Corporate Trust Office of the Trustee); provided that payment of interest on
Registered Securities may be made by check mailed to the persons entitled
thereto at the addresses of such persons appearing on the Security Register or
by transfer to an account maintained by the payee with a bank located in the
United States. In the case of Registered Securities, interest on such Debt
Securities will be payable on any Interest Payment Date to the persons in whose
names the Debt Securities are registered at the close of business on the Regular
Record Date with respect to such Interest Payment Date. All paying agents
initially designated by Nordstrom for the Offered Debt Securities will be named
in the prospectus supplement relating thereto. Nordstrom may at any time
designate additional paying agents or rescind the designation of any paying
agent or approve a change in the office through which any paying agent acts,
except that Nordstrom will be required to maintain a paying agent in each Place
of Payment for the Offered Debt Securities. (Sections 3.7 and 10.2)
Unless otherwise provided in the prospectus supplement relating to any
Offered Debt Securities, the Offered Debt Securities may be presented for
transfer (duly endorsed or accompanied by a written instrument of transfer, if
so required by Nordstrom or the Security Registrar) or exchanged for other Debt
Securities of the same series (containing identical terms and provisions, in any
authorized denominations, and of a like aggregate principal amount) at the
office or agency maintained by Nordstrom for such purposes (initially the
Corporate Trust Office of the Trustee). Such transfer or exchange shall be made
without service charge, but Nordstrom may require payment of a sum sufficient to
cover any tax or other governmental charge and any other expenses payable in
connection therewith. Nordstrom will not be required to (i) issue, register the
transfer of, or exchange, Offered Debt Securities during a period beginning at
the opening of business 15 days before the day of mailing of a notice of
redemption of any such Offered Debt Securities and ending at the close of
business on the day of such mailing or (ii) register the transfer of or exchange
any Offered Debt Security so selected for redemption in whole or in part, except
the unredeemed portion of any Offered Debt Security being redeemed in part.
(Section 3.5) Nordstrom has appointed the Trustee as Security Registrar. Any
transfer agent (in addition to the Security Registrar) initially designated by
Nordstrom for any Offered Debt Securities will be named in the applicable
prospectus supplement. Nordstrom may at any time designate additional transfer
agents or rescind the designation of any transfer agent or approve a change in
the office through which any transfer agent acts, except that Nordstrom will be
required to maintain a transfer agent in each Place of Payment for the Offered
Debt Securities. (Section 10.2)
Unless otherwise indicated in the applicable prospectus supplement, the
Offered Debt Securities will be issued only in fully registered form without
coupons in minimum denominations of $1,000 and any integral multiple thereof.
(Section 3.2) The Offered Debt Securities may be represented in whole or in part
by one or more global Debt Securities registered in the name of a Depositary or
its nominee and, if so represented, interests in such global Debt Security will
be shown on, and transfers thereof will be effected only through, records
maintained by the designated Depositary and its participants as described below.
Where Offered Debt Securities of any series are issued in bearer form, the
special restrictions and considerations, including special offering restrictions
and special Federal income tax considerations, applicable to such Offered Debt
Securities and to payment on and transfer and exchange of such Offered Debt
Securities will be described in the applicable prospectus supplement.
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<PAGE> 17
The Debt Securities may be issued as Original Issue Discount Securities
(bearing no interest or bearing interest at a rate which at the time of issuance
is below market rates) to be sold at a substantial discount below their
principal amount. Special U.S. federal income tax and other considerations
applicable thereto will be described in the applicable prospectus supplement.
If the purchase price of any Offered Debt Securities is payable in one or
more foreign currencies or currency units or if any Offered Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Offered Debt Securities is payable in one or more foreign
currencies or currency units, the restrictions, elections, certain Federal
income tax considerations, specific terms and other information with respect to
such Offered Debt Securities and such foreign currency or currency units will be
set forth in the applicable prospectus supplement.
Nordstrom will comply with Section 14(e) under the Exchange Act, and any
other tender offer rules under the Exchange Act which may then be applicable, in
connection with any obligation of Nordstrom to purchase Offered Debt Securities
at the option of the holders thereof. Any such obligation applicable to a series
of Debt Securities will be described in the applicable prospectus supplement.
Unless otherwise described in a prospectus supplement relating to any
Offered Debt Securities, other than as described below under "-- Limitation on
Liens," the Indentures do not contain any provisions that would limit the
ability of Nordstrom to incur indebtedness or that would afford holders of Debt
Securities protection in the event of a sudden and significant decline in the
credit quality of Nordstrom or a takeover, recapitalization or highly leveraged
or similar transaction involving Nordstrom. Accordingly, Nordstrom could in the
future enter into transactions that could increase the amount of indebtedness
outstanding at that time or otherwise affect Nordstrom's capital structure or
credit rating. Reference is made to the prospectus supplement relating to the
particular series of Debt Securities offered thereby for information with
respect to any deletions from, modifications of or additions to the Events of
Defaults described below or covenants of Nordstrom contained in the Indentures,
including any addition of a covenant or other provisions providing event risk or
similar protection.
CONVERSION AND EXCHANGE
The terms, if any, on which Debt Securities of any series are convertible
into or exchangeable for shares of Common Stock, property or cash, or a
combination of any of the foregoing, will be set forth in the prospectus
supplement relating thereto. Such terms may include provisions for conversion or
exchange, either mandatory, at the option of the holder, or at the option of
Nordstrom, in which the number of shares of Common Stock to be received by the
holders of the Debt Securities would be calculated according to the factors and
at such time as set forth in the related prospectus supplement.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global Debt Securities (each, a "Global Security") that will
be deposited with, or on behalf of, a Depository identified in the prospectus
supplement relating to such series.
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<PAGE> 18
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the prospectus supplement relating to
such series. Nordstrom anticipates that the following provisions will apply to
all depositary arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the Debt Securities represented by
such Global Security. Such accounts shall be designated by the underwriters or
agents with respect to such Debt Securities or by Nordstrom if such Debt
Securities are offered and sold directly by Nordstrom. Ownership of beneficial
interests in a Global Security will be limited to persons that may hold
interests through participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be effected
only through, records maintained by the Depository or its nominee (with respect
to interests of participants) for such Global Security and on the records of
participants (with respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depository for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have Debt
Securities of the series represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture governing Debt Securities.
Principal of, any premium and interest on, and any Additional Amounts with
respect to, Debt Securities registered in the name of a Depository or its
nominee will be made to the Depository or its nominee, as the case may be, as
the registered owner of the Global Security representing such Debt Securities.
Neither Nordstrom, the Trustee, any Paying Agent nor the Security Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Nordstrom expects that the Depository for a series of Debt Securities or
its nominee, upon receipt of any payment of principal of, premium, if any, or
interest on, or Additional Amounts with respect to such Debt Securities, will
credit immediately participants accounts with payments in amounts proportionate
to their respective beneficial interest in the principal amount of the Global
Security for such Debt Securities as shown on the records of such Depository or
its nominee. Nordstrom also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in "street name,"
and will be the responsibility of such participants.
The Indentures provide that if (i) the Depository for a series of Debt
Securities notifies Nordstrom that it is unwilling or unable to continue as
Depository or if such
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<PAGE> 19
Depository ceases to be eligible under the applicable Indenture and a successor
depository is not appointed by Nordstrom within 90 days of written notice, (ii)
Nordstrom determines that Debt Securities of a particular series shall no longer
be represented by Global Securities and executes and delivers to the Trustee a
Company Order to such effect or (iii) an Event of Default with respect to a
series of Debt Securities shall have occurred and be continuing, the Global
Securities will be exchanged for Debt Securities of such series in definitive
form of like tenor and of an equal aggregate principal amount, in authorized
denominations. Such definitive Debt Securities shall be registered in such name
or names as the Depository shall instruct the Trustee. (Section 3.5) It is
expected that such instructions may be based upon directions received by the
Depository from participants with respect to ownership of beneficial interests
in Global Securities.
LIMITATION ON LIENS
Under the Senior Indenture, Nordstrom covenants that, so long as any Senior
Debt Securities are outstanding, it will not, and will not permit any Restricted
Subsidiary (as defined below) to, create, incur, issue, assume or guarantee any
indebtedness for money borrowed ("Debt") secured by a Mortgage (as defined
below) upon any Operating Property (as defined below), or upon shares of capital
stock or Debt issued by any Restricted Subsidiary and owned by Nordstrom or any
Restricted Subsidiary, whether owned at the date of such Indenture or thereafter
acquired, without effectively providing concurrently that the outstanding Senior
Debt Securities (together with, if Nordstrom shall so determine, any other Debt
of Nordstrom or such Restricted Subsidiary then existing or thereafter created
which is not subordinate to the Senior Debt Securities) are secured equally and
ratably with or, at the option of Nordstrom, prior to such Debt so long as such
Debt shall be so secured. (Section 10.5 of the Senior Indenture)
Under the Subordinated Indenture, Nordstrom covenants that, so long as any
Senior Debt Securities are outstanding, it will not, and will not permit any
Restricted Subsidiary to, create, incur, issue, assume or guarantee any Debt
that is on a parity in right of payment with the Subordinated Debt Securities
secured by a Mortgage upon any Operating Property, or upon shares of capital
stock or Debt issued by any Restricted Subsidiary and owned by Nordstrom or any
Restricted Subsidiary, whether owned at the date of such Indenture or thereafter
acquired, without effectively providing concurrently that the outstanding
Subordinated Debt Securities are secured equally and ratably with or, at the
option of Nordstrom, prior to such Debt so long as such Debt shall be so
secured. (Section 10.5 of the Subordinated Indenture)
The foregoing restrictions shall not apply to, and there shall be excluded
from Debt in any computation under such restrictions, Debt secured by (i)
Mortgages on any property existing at the time of the acquisition thereof; (ii)
Mortgages on property of a corporation existing at the time such corporation is
merged into or consolidated with Nordstrom or a Restricted Subsidiary or at the
time of a sale, lease or other disposition of the properties of such corporation
(or a division thereof) as an entirety or substantially as an entirety to
Nordstrom or a Restricted Subsidiary, provided that any such Mortgage does not
extend to any property owned by Nordstrom or any Restricted Subsidiary
immediately prior to such merger, consolidation, sale, lease or disposition;
(iii) Mortgages on property of a corporation existing at the time such
corporation becomes a Restricted Subsidiary; (iv) Mortgages in favor of
Nordstrom or a Restricted Subsidiary; (v) Mortgages to secure all or part of the
cost of acquisition, construction, development or improvement of the underlying
property, or to secure Debt incurred to provide funds for any such purpose,
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provided that the commitment of the creditor to extend the credit secured by any
such Mortgage shall have been obtained not later than 365 days after the later
of (a) the completion of the acquisition, construction, development or
improvement of such property, or (b) the placing in operation of such property;
(vi) Mortgages in favor of the United States of America or any State thereof, or
any department, agency or instrumentality or political subdivision thereof, to
secure partial, progress, advance or other payments; and (vii) Mortgages
existing on the date of the applicable Indenture or any extension, renewal,
replacement or refunding of any Debt secured by a Mortgage existing on the date
of the applicable Indenture or referred to in clauses (i) to (iii) or (v),
provided that the principal amount of Debt secured thereby and not otherwise
authorized by clauses (i) to (iii) or (v) shall not exceed the principal amount
of Debt, plus any premium or fee payable in connection with any such extension,
renewal, replacement or refunding, so secured at the time of such extension,
renewal, replacement or refunding. (Section 10.5)
Notwithstanding the restrictions described above, Nordstrom and its
Restricted Subsidiaries may create, incur, issue, assume or guarantee Debt
secured by Mortgages without equally and ratably securing the Debt Securities
if, at the time of such creation, incurrence, issuance, assumption or guarantee,
after giving effect thereto and to the retirement of any Debt which is
concurrently being retired, the aggregate amount of all outstanding Debt secured
by Mortgages which would otherwise be subject to such restrictions (other than
any Debt secured by Mortgages permitted as described in clauses (i) through
(vii) of the immediately preceding paragraph) does not exceed the greater of (i)
15% of Consolidated Net Assets (as defined below) and (ii) $150 million.
(Section 10.5)
"Consolidated Net Assets" means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any indebtedness for money
borrowed having a maturity of less than 12 months from the date of the most
recent consolidated balance sheet of Nordstrom but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower), and (ii) all investments in Subsidiaries other than Restricted
Subsidiaries, all as set forth on the most recent consolidated balance sheet of
Nordstrom and computed in accordance with generally accepted accounting
principles.
"Mortgage" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Operating Property" means any real property or equipment located within
the United States and owned by, or leased to, Nordstrom or any of its
Subsidiaries that has a net book value (after deduction of accumulated
depreciation) in excess of 1.0% of Consolidated Net Assets.
"Restricted Subsidiary" means any Subsidiary of Nordstrom that owns any
Operating Property.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation, irrespective of whether or not at
the time stock of any other class or classes of such corporation shall have or
might have voting power by reason of the
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happening of any contingency, is at the time, directly or indirectly, owned or
controlled by Nordstrom or by one or more Subsidiaries thereof, or by Nordstrom
and one or more Subsidiaries. (Section 1.1)
CONSOLIDATION, AMALGAMATION, MERGER AND SALE OF ASSETS
Each Indenture provides that Nordstrom may not (i) consolidate or
amalgamate with or merge into any Person or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
Person, or (ii) permit any Person to consolidate or amalgamate with or merge
into Nordstrom, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to Nordstrom, unless (a) in the case of
(i) above, such Person is organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia, and shall
expressly assume, by supplemental indenture satisfactory in form to the Trustee,
the due and punctual payment of the principal of and premium, if any, and
interest on all of the Debt Securities issued thereunder, and the performance of
Nordstrom's obligations under such Indenture and the Debt Securities issued
thereunder; (b) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of Nordstrom or a Subsidiary as a
result of such transaction as having been incurred by Nordstrom or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which after notice or lapse of time or both would become an Event of Default,
shall have happened and be continuing; and (c) certain other conditions are met.
(Section 8.1)
EVENTS OF DEFAULT
Each of the following events will constitute an Event of Default under the
applicable Indenture with respect to any series of Debt Securities issued
thereunder (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body): (i) default in the payment of any
interest on any Debt Security of such series, or any Additional Amounts payable
with respect thereto, when such interest becomes or such Additional Amounts
become due and payable, and continuance of such default for a period of 30 days;
(ii) default in the payment of the principal of or any premium on any Debt
Security of such series, or any Additional Amounts payable with respect thereto,
when such principal or premium becomes or such Additional Amounts become due and
payable either at maturity, upon any redemption, by declaration of acceleration
or otherwise; (iii) default in the deposit of any sinking fund payment, when and
as due by the terms of any Debt Security of such series; (iv) default in the
performance, or breach, of any covenant or warranty of Nordstrom contained in
the applicable Indenture for the benefit of such series or in the Debt
Securities of such series, and the continuance of such default or breach for a
period of 60 days after there has been given written notice as provided in such
Indenture; (v) certain events in bankruptcy, insolvency or reorganization of
Nordstrom; and (vi) any other Event of Default provided in or pursuant to the
applicable Indenture with respect to Debt Securities of such series. (Section
5.1)
If an Event of Default with respect to the Debt Securities of any series
(other than an Event of Default described in (v) of the preceding paragraph)
occurs and is continuing, either the Trustee or the holders of at least 25% in
principal amount of the outstanding Debt Securities of such series by written
notice as provided in the applicable Indenture may declare the principal amount
(or such lesser amount as may be provided for in the
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Debt Securities of such series) of all outstanding Debt Securities of such
series to be due and payable immediately. At any time after a declaration of
acceleration has been made, but before a judgment or decree for payment of money
has been obtained by the Trustee, and subject to applicable law and certain
other provisions of the applicable Indenture, the holders of a majority in
aggregate principal amount of the Debt Securities of such series may, under
certain circumstances, rescind and annul such acceleration. An Event of Default
described in (v) of the preceding paragraph shall cause the principal amount and
accrued interest (or such lesser amount as provided for in the Debt Securities
of such series) to become immediately due and payable without any declaration or
other act by the Trustee or any holder. (Section 5.2)
Each Indenture provides that, within 90 days after the occurrence of any
event which is, or after notice or lapse of time or both would become, an Event
of Default thereunder with respect to the Debt Securities of any series (a
"default"), the Trustee shall transmit, in the manner set forth in such
Indenture, notice of such default to the holders of the Debt Securities of such
series unless such default has been cured or waived; provided, however, that
except in the case of a default in the payment of principal of, or premium, if
any, or interest, if any, on, or Additional Amounts or any sinking fund or
purchase fund installment with respect to, any Debt Security of such series, the
Trustee may withhold such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the best interest of the holders of Debt Securities of such series.
(Section 6.2)
If an Event of Default occurs and is continuing with respect to the Debt
Securities of any series, 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 all appropriate judicial proceedings. (Section 5.3) Each Indenture
provides that, subject to the duty of the Trustee during any 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 such Indenture at the request or
direction of any of the holders of Debt Securities, unless such holders shall
have offered to the Trustee reasonable indemnity. (Section 6.1) Subject to such
provisions for the indemnification of the Trustee, and subject to applicable law
and certain other provisions of the applicable Indenture, the holders of a
majority in aggregate principal amount of the outstanding Debt Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Debt Securities of such
series. (Section 5.12)
MODIFICATION AND WAIVER
Each Indenture may be modified or amended by Nordstrom and the Trustee with
the consent of the holders of not less than a majority in aggregate principal
amount of the outstanding Debt Securities of each series affected thereby;
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 premium or installment of
interest on, or any Additional Amounts with respect to, any Debt Security, (b)
reduce the principal amount of, or the rate (or modify the calculation of such
rate) of interest on, or any Additional Amounts with respect to, or any premium
payable upon the redemption of, any Debt Security, (c) change the obligation of
Nordstrom to pay Additional Amounts with respect to any Debt Security or
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<PAGE> 23
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof or the amount thereof provable in bankruptcy, (d) change the redemption
provisions of any Debt Security or adversely affect the right of repayment at
the option of any holder of any Debt Security, (e) change the place of payment
or the coin or currency in which the principal of, any premium or interest on or
any Additional Amounts with respect to any Debt Security is payable, (f) impair
the right to institute suit for the enforcement of any payment on or after the
Stated Maturity of any Debt Security (or, in the case of redemption, on or after
the Redemption Date or, in the case of repayment at the option of any holder, on
or after the date for repayment), (g) reduce the percentage in principal amount
of the outstanding Debt Securities, the consent of whose holders is required in
order to take certain actions, (h) reduce the requirements for quorum or voting
by holders of Debt Securities in Section 15.4 of each Indenture, (i) modify any
of the provisions in the applicable Indenture regarding the waiver of past
defaults and the waiver of certain covenants by the holders of Debt Securities
except to increase any percentage vote required or to provide that certain other
provisions of such Indenture cannot be modified or waived without the consent of
the holder of each Debt Security affected thereby, (j) make any change that
adversely affects the right to convert or exchange any Debt Security into or for
shares of Common Stock of Nordstrom or other Debt Securities in accordance with
its terms, or (k) modify any of the above provisions. (Section 9.2)
The holders of at least a majority in aggregate principal amount of the
Debt Securities of any series may, on behalf of the holders of all Debt
Securities of such series, waive compliance by Nordstrom with certain
restrictive provisions of the applicable Indenture. (Section 10.7) The holders
of not less than a majority in aggregate principal amount of the outstanding
Debt Securities of any series may, on behalf of the holders of all Debt
Securities of such series, waive any past default and its consequences under the
applicable Indenture with respect to the Debt Securities of such series, except
a default (a) in the payment of principal of (or premium, if any), any interest
on or any Additional Amounts with respect to Debt Securities of such series or
(b) in respect of a covenant or provision of the applicable Indenture that
cannot be modified or amended without the consent of the holder of each Debt
Security of any series. (Section 5.13)
Under each Indenture, Nordstrom is required to furnish the Trustee annually
a statement as to performance by Nordstrom of certain of its obligations under
such Indenture and as to any default in such performance. Nordstrom is also
required to deliver to the Trustee, within five days after occurrence thereof,
written notice of any Event of Default or any event which after notice or lapse
of time or both would constitute an Event of Default. (Section 10.8)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Nordstrom may discharge certain obligations to holders of any series of
Debt Securities that have not already been delivered to the Trustee for
cancellation and that either have become due and payable or will become due and
payable within one year (or scheduled for redemption within one year) by
depositing with the Trustee, in trust, funds in U.S. dollars or in the Foreign
Currency in which such Debt Securities are payable in an amount sufficient to
pay the entire indebtedness on such Debt Securities with respect to principal
(and premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the Maturity thereof, as the case
may be. (Section 4.1)
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Each Indenture provides that, unless the provisions of Section 4.2 thereof
are made inapplicable to the Debt Securities of or within any series pursuant to
Section 3.1 thereof, Nordstrom may elect either (a) to defease and be discharged
from any and all obligations with respect to such Debt Securities (except for,
among other things, the obligation to pay Additional Amounts, if any, upon the
occurrence of certain events of taxation, assessment or governmental charge with
respect to payments on such Debt Securities and other obligations to register
the transfer or exchange of such Debt Securities, to replace temporary or
mutilated, destroyed, lost or stolen Debt Securities, to maintain an office or
agency with respect to such Debt Securities and to hold moneys for payment in
trust) ("defeasance") or (b) to be released from its obligations with respect to
such Debt Securities under certain covenants as described in the applicable
prospectus supplement, and any omission to comply with such obligations shall
not constitute a default or an Event of Default with respect to such Debt
Securities ("covenant defeasance"). Defeasance or covenant defeasance, as the
case may be, shall be conditioned upon the irrevocable deposit by Nordstrom with
the Trustee, in trust, of an amount in U.S. dollars or in the Foreign Currency
in which such Debt Securities are payable at Stated Maturity, or Government
Obligations (as defined below), or both, applicable to such Debt Securities
which through the scheduled payment of principal and interest in accordance with
their terms will provide money in an amount sufficient to pay the principal of
(and premium, if any) and interest on such Debt Securities on the scheduled due
dates therefor. (Section 4.2)
Such a trust may only be established if, among other things, (i) the
applicable defeasance or covenant defeasance does not result in a breach or
violation of, or constitute a default under, the applicable Indenture or any
other material agreement or instrument to which Nordstrom is a party or by which
it is bound, (ii) no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the Debt
Securities to be defeased shall have occurred and be continuing on the date of
establishment of such a trust and, with respect to defeasance only, at any time
during the period ending on the 123rd day after such date and (iii) Nordstrom
has delivered to the Trustee an Opinion of Counsel (as specified in the
Indenture) to the effect that the holders of such Debt Securities will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such defeasance or covenant defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance or covenant defeasance had not
occurred, and such Opinion of Counsel, in the case of defeasance, must refer to
and be based upon a letter ruling of the Internal Revenue Service received by
Nordstrom, a Revenue Ruling published by the Internal Revenue Service or a
change in applicable U.S. federal income tax law occurring after the date of the
applicable Indenture. (Section 4.2)
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the euro, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments. (Section 1.1)
"Government Obligations" means Debt Securities which are (i) direct
obligations of the United States of America or the government or the governments
in the confederation which issued the Foreign Currency in which the Debt
Securities of a particular series are payable, for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such government or governments which issued the Foreign Currency in
which the Debt Securities of such series are payable, the timely payment of
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which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government or governments, which, in the
case of clauses (i) and (ii), are not callable or redeemable at the option of
the issuer or issuers thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of or
any other amount with respect to any such Government Obligation held by such
custodian for the account of the holder of such 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 with respect to the Government Obligation
or the specific payment of interest on or principal of or any other amount with
respect to the Government Obligation evidenced by such depository receipt.
(Section 1.1)
If after Nordstrom has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to Debt Securities of any
series, (a) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 3.1 of the applicable Indenture or the terms of
such Debt Security to receive payment in a currency other than that in which
such deposit has been made in respect of such Debt Security, or (b) a Conversion
Event (as defined below) occurs in respect of the Foreign Currency in which such
deposit has been made, the indebtedness represented by such Debt Security shall
be deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any) and interest, if any, on such
Debt Security as such Debt Security becomes due out of the proceeds yielded by
converting the amount or other properties so deposited in respect of such Debt
Security into the currency in which such Debt Security becomes payable as a
result of such election or such Conversion Event based on (x) in the case of
payments made pursuant to clause (a) above, the applicable market exchange rate
for such currency in effect on the second business day prior to such payment
date, or (y) with respect to a Conversion Event, the applicable market exchange
rate for such Foreign Currency in effect (as nearly as feasible) at the time of
the Conversion Event. (Section 4.2)
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community or
(ii) any currency unit or composite currency for the purposes for which it was
established. All payments of principal of (and premium, if any) and interest on
any Security that are payable in a Foreign Currency that ceases to be used by
the government or confederation of issuance shall be made in U.S. dollars.
(Section 1.1)
In the event Nordstrom effects covenant defeasance with respect to any Debt
Securities and such Debt Securities are declared due and payable because of the
occurrence of any Event of Default other than an Event of Default with respect
to any covenant as to which there has been covenant defeasance, the amount in
such Foreign Currency in which such Debt Securities are payable, and Government
Obligations on deposit with the Trustee, will be sufficient to pay amounts due
on such Debt Securities at the time of the Stated Maturity but may not be
sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, Nordstrom would
remain liable to make payment of such amounts due at the time of acceleration.
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SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Indebtedness. (Section 16.1 of the Subordinated Indenture)
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to Nordstrom or to its creditors, as such, or to
its assets, or (b) any liquidation, dissolution or other winding up of
Nordstrom, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of Nordstrom, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash, before
the holders of Subordinated Debt Securities are entitle to receive any payment
on account of principal of, or any premium or interest on, or any Additional
Amount with respect to, Subordinated Debt Securities, and to that end the
holders of Senior Indebtedness shall be entitled to receive, for application to
the payment thereof, any payment or distribution of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness of Nordstrom being subordinated to the payment of
Subordinated Debt Securities, which may be payable or deliverable in respect of
the Subordinated Debt Securities in any such case, proceeding, dissolution,
liquidation or other winding up event. (Section 16.3 of the Subordinated
Indenture)
By reason of such subordination, in the event of liquidation or insolvency
of Nordstrom, holders of Senior Indebtedness and holders of other obligations of
Nordstrom that are not subordinated to Senior Indebtedness may recover more,
ratably, than the holders of the Subordinated Debt Securities.
In the event of the acceleration of the maturity of any Subordinated Debt
Securities, the holders of all Senior Debt Securities outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
amounts due thereon before the holders of the Subordinated Debt Securities will
be entitled to receive any payment upon the principal of, or any premium or
interest on, or any Additional Amounts with respect to, the Subordinated Debt
Securities. (Section 16.4 of the Subordinated Indenture)
No payment of principal (including redemption and sinking fund payments) of
or any premium or interest on or any Additional Amounts with respect to the
Subordinated Debt Securities may be made (i) if any Senior Indebtedness of
Nordstrom is not paid when due and any applicable grace period with respect to
such default has ended and such default has not been cured or waived or ceased
to exist, or (ii) if the maturity of any Senior Indebtedness of Nordstrom has
been accelerated because of a default. (Section 16.2 of the Subordinated
Indenture)
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Debt Securities, which may include indebtedness that is senior
to the Subordinated Debt Securities, but subordinate to other obligations of
Nordstrom. The Senior Debt Securities constitute Senior Indebtedness under the
Subordinated Indenture.
The term "Senior Indebtedness" means (i) the principal and premium, if any,
and unpaid interest in respect of (A) indebtedness of Nordstrom for money
borrowed and (B) indebtedness evidenced by securities, debentures, bonds or
other similar instruments
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issued by Nordstrom, (ii) all capital lease obligations of Nordstrom, (iii) all
obligations of Nordstrom issued or assumed as the deferred purchase price of
property, all conditional sale obligations of Nordstrom and all obligations of
Nordstrom under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business), (iv) all obligations of
Nordstrom for the reimbursement on any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction, (v) obligations
associated with derivative products such as interest rate and currency exchange
contracts, foreign exchange contracts, commodity contracts, and similar
arrangements, (vi) all obligations of the types referred to in clauses (i)
through (v) above of other persons for the payment of which Nordstrom is
responsible or liable as an obligor, guarantor or otherwise and (vii) all
obligations of the types referred to in clauses (i) through (vi) above of other
persons secured by any lien on any property or asset of Nordstrom (whether or
not such obligation is assumed by Nordstrom), except, in each case, for (1) any
such indebtedness or obligation that is by its terms subordinated to or pari
passu with the Subordinated Debt Securities, (2) any indebtedness of Nordstrom
to a wholly owned Subsidiary of Nordstrom, (3) interest accruing after the
filing of a petition initiating certain events of bankruptcy or insolvency
unless such interest is an allowed claim enforceable against Nordstrom in a
proceeding under federal or state bankruptcy laws and (4) trade payables. Such
Senior Indebtedness shall continue to be Senior Indebtedness and be entitled to
the benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness. (Sections 1.1
and 16.8 of the Subordinated Indenture)
The Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of Subordinated Debt
Securities, may be changed prior to such issuance. Any such change would be
described in the applicable prospectus supplement.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York applicable to agreements
made or instruments entered into and, in each case performed in said state.
(Section 1.13)
RELATIONSHIP WITH THE TRUSTEE
The Trustee under the Indenture, Norwest Bank Colorado, National
Association, also acts as trustee in connection with an indenture dated as of
March 11, 1998 relating to $300,000,000 aggregate principal amount of
Nordstrom's Senior Debentures due 2028. In addition, the Trustee is also the
trustee under two indentures covering outstanding medium-term notes of Nordstrom
Credit, Inc., a subsidiary of Nordstrom.
DESCRIPTION OF DEBT WARRANTS
Nordstrom may issue, together with other securities or separately, Debt
Warrants for the purchase of Debt Securities. The Debt Warrants are to be issued
under Debt Warrant Agreements (each a "Debt Warrant Agreement") to be entered
into between Nordstrom and a bank or trust company, as Debt Warrant Agent (the
"Debt Warrant Agent"), all as set forth in the prospectus supplement relating to
Debt Warrants in respect of which this prospectus is being delivered. The Debt
Warrant Agent will act solely as an agent of
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Nordstrom in connection with the Debt Warrants of such series and will not
assume any obligations or relationship of agency or trust for or with any
holders or beneficial owners of Debt Warrants. A copy of the form of Debt
Warrant Agreement, including the form of Warrant Certificates representing the
Debt Warrants (the "Debt Warrant Certificates"), reflecting the alternative
provisions to be included in the Debt Warrant Agreements that will be entered
into with respect to particular offerings of Debt Warrants, will be filed in an
amendment to the registration statement of which this prospectus is a part or
filed in a Current Report on Form 8-K and incorporated by reference in the
registration statement of which this prospectus is a part. The following
summaries of certain provisions that will be included in the Debt Warrant
Agreements and the Debt Warrant Certificates do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all the
provisions of the applicable Debt Warrant Agreement and the Debt Warrant
Certificates, respectively, to be filed in an amendment to the registration
statement of which this prospectus is a part or to be filed in a Current Report
on Form 8-K and incorporated by reference in the registration statement of which
this prospectus is a part, including the definitions therein of certain
capitalized terms not defined herein.
GENERAL
Reference is made to the prospectus supplement for the terms of Debt
Warrants in respect of which this prospectus is being delivered, the Debt
Warrant Agreement relating to such Debt Warrants and the Debt Warrant
Certificates representing such Debt Warrants, including the following:
- the designation, aggregate principal amount and terms of the Debt
Securities purchasable upon the exercise of such Debt Warrants and the
procedures and conditions relating to the exercise of such Debt Warrants;
- the designation and terms of any related Debt Securities with which such
Debt Warrants are issued and the number of such Debt Warrants issued with
each such Debt Security;
- the date, if any, on and after which such Debt Warrants and the related
Debt Securities will be separately transferable;
- the principal amount of Debt Securities purchasable upon exercise of each
Debt Warrant and the price at which such principal amount of Debt
Securities may be purchased upon such exercise;
- the date on which the right to exercise such Debt Warrants shall commence
and the date on which such right shall expire (the "Expiration Date");
- if the Debt Securities purchasable upon exercise of such Debt Warrants
are original issue discount Debt Securities, a discussion of federal
income tax considerations applicable thereto; and
- whether the Debt Warrants represented by the Debt Warrant Certificates
will be issued in registered or bearer form, and, if registered, where
they may be transferred and registered.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Debt Warrant Agent or any other office
indicated in the prospectus supplement.
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Prior to the exercise of their Debt Warrants, holders of Debt Warrants will not
have any of the rights of holders of the Debt Securities purchasable upon such
exercise and will not be entitled to payments of principal of (and premium, if
any) or interest, if any, on the Debt Securities purchasable upon such exercise.
EXERCISE OF DEBT WARRANTS
Each Debt Warrant will entitle the holder to purchase for cash such
principal amount of Debt Securities at such exercise price as shall in each case
be set forth in, or to be determinable as set forth in the prospectus supplement
relating to the Debt Warrants offered thereby. Debt Warrants may be exercised at
any time up to the close of business on the Expiration Date set forth in the
applicable prospectus supplement. After the close of business on the Expiration
Date, unexercised Debt Warrants will become void.
Debt Warrants may be exercised as set forth in the prospectus supplement
relating to the Debt Warrants in respect of which this prospectus is being
delivered. Upon receipt of payment and the Debt Warrant Certificate properly
completed and duly executed at the corporate trust office of the Debt Warrant
Agent or any other office indicated in the prospectus supplement, Nordstrom
will, as soon as practicable, forward the Debt Securities purchasable upon such
exercise. If less than all of the Debt Warrants represented by such Debt Warrant
Certificate are exercised, a new Debt Warrant Certificate will be issued for the
remaining amount of Debt Warrants.
DESCRIPTION OF COMMON STOCK
Nordstrom may issue common stock upon conversion of any convertible debt
securities issued under this prospectus.
The following summaries do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, Nordstrom's Articles of
Incorporation as amended and By-Laws. The Articles of Incorporation and By-Laws
are incorporated by reference as exhibits.
The total amount of the authorized capital stock of Nordstrom consists of
250,000,000 shares, no par value, of common stock, of which 142,069,092 shares
of Common Stock were issued and outstanding as of November 30, 1998.
The holders of outstanding shares of the Common Stock are entitled to
receive dividends at such times and in such amounts as the Board of Directors
may from time to time determine. The shares of Common Stock are neither
redeemable nor convertible, and the holders thereof have no preemptive or
subscription rights to purchase any securities of Nordstrom. Each outstanding
share of Common Stock is entitled to one vote on all matters submitted to a vote
of shareholders. There is no cumulative voting. Upon any liquidation,
dissolution or winding up of Nordstrom, whether voluntary or involuntary,
remaining net assets, if any, of Nordstrom will be distributed pro rata to the
holders of the Common Stock.
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DESCRIPTION OF STOCK WARRANTS
Nordstrom may issue, together with other securities or separately, Stock
Warrants for the purchase of Common Stock. The Stock Warrants are to be issued
under Stock Warrant Agreements (each a "Stock Warrant Agreement") to be entered
into between Nordstrom and a bank or trust company, as Stock Warrant Agent (the
"Stock Warrant Agent"), all as set forth in the prospectus supplement relating
to Stock Warrants in respect of which this prospectus is being delivered. The
Stock Warrant Agent will act solely as an agent of Nordstrom in connection with
the Stock Warrants of such series and will not assume any obligations or
relationship of agent or trust for or with any holders or beneficial owners of
Stock Warrants. A copy of the form of Stock Warrant Agreement, including the
form of Warrant Certificates representing the Stock Warrants (the "Stock Warrant
Certificates") reflecting the provisions to be included in the Stock Warrant
Agreement that will be entered into with respect to particular offerings of
Stock Warrants, will be filed in an amendment to the registration statement of
which this prospectus is a part or filed in a Current Report on Form 8-K and
incorporated by reference in the registration statement of which this prospectus
is a part. The following summaries of certain provisions that will be included
in the Stock Warrant Agreements and the Stock Warrant Certificates,
respectively, to be filed in an amendment to the registration statement of which
this prospectus is a part or to be filed in a Current Report on Form 8-K and
incorporated by reference in the registration statement of which this prospectus
is a part, including the definitions therein of certain capitalized terms not
defined herein.
GENERAL
Reference is made to the prospectus supplement for the terms of Stock
Warrants in respect of which this prospectus is being delivered, the Stock
Warrant Agreement relating to such Stock Warrants and the Stock Warrant
Certificates representing such Stock Warrants, including the following:
- the offering price of such Stock Warrants, if any;
- the procedures and conditions relating to the exercise of such Stock
Warrants;
- the number of shares of Common Stock purchasable upon exercise of each
Stock Warrant and the initial price at which such shares may be purchased
upon exercise;
- the date on which the right to exercise such Stock Warrants shall
commence and the date on which such right shall expire (the "Expiration
Date");
- a discussion of Federal income tax considerations applicable to the
exercise of Stock Warrants;
- call provisions of such Stock Warrants, if any; and
- other terms of the Stock Warrants.
The shares of Common Stock issuable upon the exercise of the Stock Warrants
will, when issued in accordance with the Stock Warrant Agreement, be fully paid
and nonassessable.
Prior to the exercise of their Stock Warrants, holders of Stock Warrants
will not have any of the rights of holders of the Common Stock purchasable upon
such exercise, and
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will not be entitled to any dividend payments on the Common Stock purchasable
upon such exercise.
EXERCISE OF STOCK WARRANTS
Each Stock Warrant will entitle the holder to purchase for cash such number
of shares of Common Stock at such exercise price as shall in each case be set
forth in, or be determinable as set forth in, the prospectus supplement relating
to the Stock Warrants offered thereby. Unless otherwise specified in the
applicable prospectus supplement, Stock Warrants may be exercised at any time up
to the close of business on the Expiration Date set forth in the applicable
prospectus supplement. After the close of business on the Expiration Date,
unexercised Stock Warrants will become void.
Stock Warrants may be exercised as set forth in the prospectus supplement
relating to the Stock Warrants in respect of which this prospectus is being
delivered. Upon receipt of payment and the Stock Warrant Certificates properly
completed and duly executed at the corporate trust office of the Stock Warrant
Agent or any other office indicated in the prospectus supplement, Nordstrom
will, as soon as practicable, forward a certificate representing the number of
shares of Common Stock purchasable upon such exercise. If less than all of the
Stock Warrants represented by such Stock Warrant Certificate are exercised, a
new Stock Warrant Certificate will be issued for the remaining amount of Stock
Warrants.
ANTIDILUTION PROVISIONS
Unless otherwise specified in the applicable prospectus supplement, the
exercise price payable and the number of shares purchasable upon the exercise of
each Stock Warrant will be subject to adjustment in certain events, including
(1) the issuance of a stock dividend to holders of Common Stock or a
combination, subdivision or reclassification of Common Stock; (2) the issuance
of rights, warrants or options to all holders of Common Stock entitling the
holders thereof to purchase Common Stock for an aggregate consideration per
share less than the current market price per share of the Common Stock; or (3)
any distribution by Nordstrom to the holders of its Common Stock of evidences of
indebtedness of Nordstrom or of assets (excluding cash dividends or
distributions payable out of capital surplus and dividends and distributions
referred to in (1) above). No fractional shares will be issued upon exercise of
Stock Warrants, but Nordstrom will pay the cash value of any fractional shares
otherwise issuable.
DESCRIPTION OF CURRENCY WARRANTS
Nordstrom may issue, together with Debt Securities or Debt Warrants or
separately, Currency Warrants either in the form of Currency Put Warrants
entitling the holders thereof to receive from Nordstrom the Cash Settlement
Value in U.S. dollars of the right to sell a specified amount of a specified
foreign currency or currency units for a specified amount of U.S. dollars, or in
the form of Currency Call Warrants entitling the holders thereof to receive from
Nordstrom the Cash Settlement Value in U.S. dollars of the right to purchase a
specified amount of a specific foreign currency or currency units for a
specified amount of U.S. dollars. The spot exchange rate of the applicable Base
Currency, upon exercise, as compared to the U.S. dollar, will determine whether
the Currency Warrants have a Cash Settlement Value on any given day prior to
their expiration.
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The Currency Warrants are to be issued under a Currency Warrant Agreement
to be entered into between Nordstrom and a bank or trust company, as Currency
Warrant Agent (the "Currency Warrant Agent"), all as set forth in the prospectus
supplement. The Currency Warrant Agent will act solely as an agent of Nordstrom
in connection with the Currency Warrants of such series and will not assume any
obligations or relationship of agent or trust for or with any holders or
beneficial owners of Currency Warrants. A copy of the form of Currency Warrant
Agreement, including the forms of global Warrant Certificates representing the
Currency Put Warrants and Currency Call Warrants (the "Currency Warrant
Certificates"), reflecting the provisions to be included in the Currency Warrant
Agreement that will be entered into with respect to particular offerings of
Currency Warrants, will be filed in an amendment to the registration statement
of which this prospectus is a part or filed in a Current Report on Form 8-K and
incorporated by reference in the registration statement of which this prospectus
is a part. The description of the Currency Warrants contained herein and the
following summaries of certain provisions that will be included in the Currency
Warrant Agreements and the Currency Warrant Certificates do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the applicable Currency Warrant Agreement and the
Currency Warrant Certificates, respectively, to be filed in an amendment to the
registration statement of which this prospectus is a part or to be filed in a
Current Report on Form 8-K and incorporated by reference in the registration
statement of which this prospectus is a part, including the definitions therein
of certain capitalized terms not defined herein.
GENERAL
Reference is made to the prospectus supplement for the terms of Currency
Warrants in respect of which this prospectus is being delivered, the Currency
Warrant Agreement relating to such Currency Warrants and the Currency Warrant
Certificates representing such Currency Warrants, including the following:
- whether such Currency Warrants will be Currency Put Warrants, Currency
Call Warrants, or both;
- the formula for determining the Cash Settlement Value, if any, of each
Currency Warrant;
- the procedures and conditions relating to the exercise of such Currency
Warrant;
- the circumstances which will cause the Currency Warrants to be deemed to
be automatically exercised;
- any minimum number of Currency Warrants which must be exercised at any
one time, other than upon automatic exercise; and
- the date on which the right to exercise such Currency Warrants will
commence and the date on which such right will expire (the "Expiration
Date").
BOOK-ENTRY PROCEDURES AND SETTLEMENT
Except as may otherwise be provided in the applicable prospectus
supplement, the Currency Warrants will be issued in the form of global Currency
Warrant Certificates, registered in the name of a depositary or its nominee.
Holders will not be entitled to receive definitive certificates representing
Currency Warrants. A holder's ownership of a
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Currency Warrant will be recorded on or through the records of the brokerage
firm or other entity that maintains such holder's account. In turn, the total
number of Currency Warrants held by an individual brokerage firm for its clients
will be maintained on the records of the depositary in the name of such
brokerage firm or its agent. Transfer of ownership of any Currency Warrant will
be effected only through the selling holder's brokerage firm.
EXERCISE OF CURRENCY WARRANTS
Each Currency Warrant will entitle the holder to receive the Cash
Settlement Value of such Currency Warrant on the applicable Exercise Date, in
each case as such terms will be defined in the applicable prospectus supplement.
If not exercised prior to 3:00 P.M., New York City time, on the third New York
Business Day preceding the Expiration Date, Currency Warrants will be deemed
automatically exercised on the Expiration Date.
PLAN OF DISTRIBUTION
Nordstrom may sell Offered Securities in any one or more of the following
ways from time to time: (i) to or through underwriters; (ii) through dealers;
(iii) through agents, or (iv) directly to purchasers. The prospectus supplement
with respect to the Offered Securities will set forth the terms of the offering
of the Offered Securities, including the name or names of any underwriters,
dealers or agents; the purchase price of the Offered Securities and the proceeds
to Nordstrom from such sale; any underwriting discounts and commissions or
agency fees and other items constituting underwriters' or agents' compensation;
any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers and any securities exchange on which such Offered
Securities may be listed. Any initial public offering price, discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
If Offered Securities are sold by means of an underwritten offering,
Nordstrom will execute an underwriting agreement with an underwriter or
underwriters at the time an agreement for such sale is reached, and the names of
the specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transaction, including commissions, discounts
and any other compensation of the underwriters and dealers, if any, will be set
forth in the prospectus supplement which will be used by the underwriters to
make resales of the Offered Securities in respect of which this prospectus is
delivered to the public. If underwriters are utilized in the sale of the Offered
Securities in respect of which this prospectus is delivered, the Offered
Securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by
the underwriter at the time of sale. Offered Securities may be offered to the
public either through underwriting syndicates represented by managing
underwriters or directly by the managing underwriters. If any underwriter or
underwriters are utilized in the sale of the Offered Securities, unless
otherwise indicated in the prospectus supplement, the underwriting agreement
will provide that the obligations of the underwriters are subject
24
<PAGE> 34
to certain conditions precedent and that the underwriters with respect to a sale
of Offered Securities will be obligated to purchase all such Offered Securities
of a series if any are purchased.
Nordstrom may grant to the underwriters options to purchase additional
Offered Securities, to cover over-allotments, if any, at the public offering
price (with additional underwriting discounts or commissions), as may be set
forth in the prospectus supplement relating thereto. If Nordstrom grants any
over-allotment option, the terms of such over-allotment option will be set forth
in the prospectus supplement relating to such Offered Securities.
If a dealer is utilized in the sales of Offered Securities in respect of
which this prospectus is delivered, Nordstrom will sell such Offered Securities
to the dealer as principal. The dealer may then resell such Offered Securities
to the public at varying prices to be determined by such dealer at the time of
resale. Any such dealer may be deemed to be an underwriter, as such term is
defined in the Securities Act of 1933, as amended (the "Securities Act"), of the
Offered Securities so offered and sold. The name of the dealer and the terms of
the transaction will be set forth in the prospectus supplement relating thereto.
Offers to purchase Offered Securities may be solicited by agents designated
by Nordstrom from time to time. Any such agent involved in the offer or sale of
the Offered Securities in respect of which this prospectus is delivered will be
named, and any commissions payable by Nordstrom to such agent will be set forth,
in the applicable prospectus supplement. Unless otherwise indicated in such
prospectus supplement, any such agent will be acting on a reasonable best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act, of the Offered
Securities so offered and sold.
Offers to purchase Offered Securities may be solicited directly by
Nordstrom and the sale thereof may be made by Nordstrom directly to
institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale thereof. The terms
of any such sales will be described in the prospectus supplement relating
thereto.
Underwriters, dealers and agents may be entitled under relevant agreements
entered into with Nordstrom to indemnification by Nordstrom against certain
civil liabilities, including liabilities under the Securities Act that may arise
from any untrue statement or alleged untrue statement of a material fact or any
omission or alleged omission to state a material fact in this prospectus, any
supplement or amendment hereto, or in the registration statement of which this
prospectus forms a part, or to contribution with respect to payments which the
agents, underwriters or dealers may be required to make in respect thereof.
If so indicated in the prospectus supplement, Nordstrom will authorize
underwriters or other persons acting as Nordstrom's agents to solicit offers by
certain institutions to purchase Offered Securities from Nordstrom pursuant to
contracts providing for payments and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must be
approved by Nordstrom. The obligations of any purchaser under any such contract
will be subject to the condition that the purchase of the Offered Securities
shall not at the time of
25
<PAGE> 35
delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
Each series of Offered Securities will be a new issue and, other than
shares of the Common Stock, which are listed on the NASDAQ National Market, will
have no established trading market. Nordstrom may elect to list any series of
Offered Securities on an exchange, and in the case of shares of Common Stock, on
any additional exchange, but, unless otherwise specified in the applicable
prospectus supplement, Nordstrom shall not be obligated to do so. No assurance
can be given as to the liquidity of the trading market for any of the Offered
Securities.
Underwriters, dealers and agents may be customers of, engage in
transactions with, or perform services for, Nordstrom and its subsidiaries in
the ordinary course of business.
LEGAL MATTERS
Lane Powell Spears Lubersky LLP, Seattle, Washington will pass upon the
validity of the Offered Securities for Nordstrom. D. Wayne Gittinger, a partner
in that firm, is also a director of Nordstrom. At December 18, 1998 members of
the firm beneficially owned, directly or indirectly, a total of approximately
10,600,000 shares of Common Stock.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this prospectus by reference from Nordstrom's Annual Report on
Form 10-K for the year ended January 31, 1998, have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
26
<PAGE> 36
- ------------------------------------------------------
- ------------------------------------------------------
No dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this prospectus. You must
not rely on any unauthorized information or representations. This prospectus is
an offer to sell only the Notes offered hereby, but only under circumstances and
in jurisdictions where it is lawful to do so. The information contained in this
prospectus is current only as of its date.
------------------------
TABLE OF CONTENTS
Prospectus Supplement
<TABLE>
<CAPTION>
Page
----
<S> <C>
Use of Proceeds....................... S-2
The Company........................... S-2
Selected Consolidated Financial
Data................................ S-3
Description of the Notes.............. S-4
Underwriting.......................... S-6
Legal Matters......................... S-7
Prospectus
Where You Can Find Additional
Information......................... 2
Nordstrom, Inc........................ 3
Use of Proceeds....................... 3
Ratio of Earnings to Fixed Charges.... 3
General Description of the Offered
Securities.......................... 4
Description of the Debt Securities.... 4
Description of the Debt Warrants...... 18
Description of Common Stock........... 20
Description of Stock Warrants......... 21
Description of Currency Warrants...... 22
Plan of Distribution.................. 24
Legal Matters......................... 26
Experts............................... 26
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
$200,000,000
NORDSTROM
% SENIOR NOTES DUE
, 2009
------------------------
PROSPECTUS SUPPLEMENT
------------------------
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON
MERRILL LYNCH & CO.
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 37
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimated, except the
SEC registration fee.
<TABLE>
<S> <C>
SEC registration fee................................. $166,800
Legal fees and expenses.............................. 200,000
Printing and engraving............................... 85,000
Fees of accountants.................................. 100,000
Fees of trustees..................................... 20,000
Blue sky fees and expenses........................... 5,000
Miscellaneous........................................ 23,200
--------
Total...................................... $600,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article XII of the amended and restated Bylaws of the Registrant authorizes
the Registrant to indemnify any present or former director, officer, employee or
agent to the fullest extent not prohibited by the Washington Business
Corporation Act. Provisions of the Washington Business Corporation Act (RCW
23B.08.510 and .570) give the Registrant power to indemnify directors, officers,
employees and agents of the Registrant and those serving at the Registrant's
request in similar positions in any other corporation, partnership, joint
venture, trust or other enterprise, in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended.
The Registrant carries directors' and officers' liability insurance which
generally insures officers and directors of the Registrant against certain
liabilities by reason of certain acts and omissions in connection with their
duties for the Registrant.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
*1.2 Form of Distribution Agreement.
4.1 Articles of Incorporation (incorporated by reference to
Nordstrom's Annual Report on Form 10-K for the year ended
January 31, 1989).
4.2 Bylaws, as amended (incorporated by reference to Exhibit 3.2
to Nordstrom's Annual Report on Form 10-K for the fiscal
year ended January 31, 1998).
4.3 Senior Indenture between Nordstrom and Norwest Bank
Colorado, National Association, as Trustee.
4.4 Form of Subordinated Indenture between Nordstrom and Norwest
Bank Colorado, National Association, as Trustee.
4.5 Form of Senior Debt Securities.
</TABLE>
II-1
<PAGE> 38
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
*4.6 Form of Subordinated Debt Securities.
*4.7 Form of Debt Warrant Agreement, including form of Debt
Warrant Certificate.
*4.8 Form of Stock Warrant Agreement, including form of Stock
Warrant Certificate.
*4.9 Form of Currency Warrant Agreement, including form of
Currency Warrant Certificate.
5.1 Opinion of Lane Powell Spears Lubersky LLP.
**12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Lane Powell Spears Lubersky LLP (included in
Exhibit 5.1).
**24. Powers of Attorney.
25 Statement of Eligibility on Form T-l of Norwest Bank
Colorado, National Association, as Trustee under the Senior
Indenture and the form of Subordinated Indenture.
</TABLE>
- -------------------------
* To be filed, if necessary, subsequent to the effectiveness of this
Registration Statement by an amendment to the Registration Statement or
incorporated by reference pursuant to a Current Report on Form 8-K in
connection with the offering of Securities.
** Previously filed.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, 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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those
II-2
<PAGE> 39
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned registrant hereby undertakes that
(1) for purposes of determining any liability under the Securities Act
of 1933, 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.
(2) For the purpose of determining any liability under the Securities
Act of 1933, 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.
(e) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Securities and Exchange Commission under
Section 305(b)(2) of the Trust Indenture Act.
II-3
<PAGE> 40
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Seattle, State of Washington on the 13th day of
January, 1999.
NORDSTROM, INC.
By /s/ MICHAEL A. STEIN
------------------------------------
Michael A. Stein
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed by the following persons in the
capacities indicated below on the 13th day of January, 1999:
<TABLE>
<C> <S>
* Chairman and Director (Principal
- --------------------------------------------------- Executive Officer)
John J. Whitacre
/s/ MICHAEL A. STEIN Executive Vice President and Chief
- --------------------------------------------------- Financial Officer
Michael A. Stein
* Director
- ---------------------------------------------------
D. Wayne Gittinger
* Director
- ---------------------------------------------------
Enrique Hernandez, Jr.
* Director
- ---------------------------------------------------
Ann D. McLaughlin
* Director
- ---------------------------------------------------
John A. McMillan
* Director
- ---------------------------------------------------
Bruce A. Nordstrom
* Director
- ---------------------------------------------------
John N. Nordstrom
* Director
- ---------------------------------------------------
Alfred E. Osborne, Jr.
</TABLE>
II-4
<PAGE> 41
<TABLE>
<C> <S>
* Director
- ---------------------------------------------------
William D. Ruckelshaus
* Director
- ---------------------------------------------------
Elizabeth Crownhart Vaughan
* Director
- ---------------------------------------------------
Bruce G. Willison
*By: /s/ MICHAEL A. STEIN
---------------------------------------------
Michael A. Stein
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 42
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
*1.2 Form of Distribution Agreement.
4.1 Articles of Incorporation (incorporated by reference to
Nordstrom's Annual Report on Form 10-K for the year ended
January 31, 1989).
4.2 Bylaws, as amended (incorporated by reference to Exhibit 3.2
to Nordstrom's Annual Report on Form 10-K for the fiscal
year ended January 31, 1998).
4.3 Senior Indenture between Nordstrom and Norwest Bank
Colorado, National Association, as Trustee.
4.4 Form of Subordinated Indenture between Nordstrom and Norwest
Bank Colorado, National Association, as Trustee.
4.5 Form of Senior Debt Securities.
*4.6 Form of Subordinated Debt Securities.
*4.7 Form of Debt Warrant Agreement, including form of Debt
Warrant Certificate.
*4.8 Form of Stock Warrant Agreement, including form of Stock
Warrant Certificate.
*4.9 Form of Currency Warrant Agreement, including form of
Currency Warrant Certificate.
5.1 Opinion of Lane Powell Spears Lubersky LLP.
**12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Lane Powell Spears Lubersky LLP (included in
Exhibit 5.1).
**24. Powers of Attorney.
25 Statement of Eligibility on Form T-l of Norwest Bank
Colorado, National Association, as Trustee under the Senior
Indenture and the form of Subordinated Indenture.
</TABLE>
- -------------------------
* To be filed, if necessary, subsequent to the effectiveness of this
Registration Statement by an amendment to the Registration Statement or
incorporated by reference pursuant to a Current Report on Form 8-K in
connection with the offering of Securities.
** Previously filed.
<PAGE> 1
EXHIBIT 1.1
NORDSTROM, INC.
____% SENIOR NOTES DUE 2009
UNDERWRITING AGREEMENT
January ___, 1999
Goldman, Sachs & Co.
Credit Suisse First Boston Corporation
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Ladies and Gentlemen:
Nordstrom, Inc., a Washington corporation (the "Company"), proposes, subject to
the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of $200,000,000
principal amount of the ___% Senior Notes Due 2009 of the Company, specified
above (the "Securities").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-69281) (the "Initial Registration Statement") in respect of the
Securities has been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement, as amended, and any
post-effective amendment thereto, each in the form heretofore delivered to you,
and excluding exhibits thereto but including all documents incorporated by
reference in the prospectus contained therein, to you for each of the other
Underwriters, have been declared effective by the Commission in such form; other
than a registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act), which became effective upon
filing, no other document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus and preliminary prospectus supplement included in the Initial
Registration Statement or filed with the
<PAGE> 2
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act are hereinafter collectively called a "Preliminary
Prospectus;" the various parts of the Initial Registration Statement and the
Rule 462(b) Registration Statement, if any, including all exhibits thereto but
excluding the Statement of Eligibility of the Trustee on Form T-1 and including
(i) the information contained in the form of final prospectus and prospectus
supplement relating to the Securities filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue
of Rule 430A under the Act to be part of the Initial Registration Statement at
the time it was declared effective and (ii) the documents incorporated by
reference in the prospectus contained in the Initial Registration Statement at
the time such part of the Initial Registration Statement became effective, each
as amended at the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement, if any, became
or hereafter becomes effective, are hereinafter collectively called the
"Registration Statement;" such final prospectus and prospectus supplement, in
the form first filed pursuant to Rule 424(b) under the Act, are hereinafter
collectively called the "Prospectus" and any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such Preliminary Prospectus or the Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary Prospectus or
the Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement;
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein;
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be,
2
<PAGE> 3
will conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through Goldman, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein or the information contained in
the Statement of Eligibility of the Trustee on Form T-1 filed as an exhibit to
the Registration Statement;
(e) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change
material to the Company in the capital stock or long-term debt of the Company or
any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries (taken as a whole), otherwise
than as set forth or contemplated in the Prospectus;
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable, and all of the issued shares of capital stock of Nordstrom
Credit, Inc. and Nordstrom National Credit Bank have been duly and validly
authorized and issued, are fully paid and non-assessable and are beneficially
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Washington with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, and has been duly
qualified as foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or leases
properties
3
<PAGE> 4
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction; and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation;
(h) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company, subject as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization, other laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether enforceability is considered in a proceeding at law or in
equity), and will be entitled to the benefits provided by the indenture dated as
of __________, 1999 (the "Indenture") between the Company and Norwest Bank
Colorado, National Association, as Trustee (the "Trustee"), under which they are
to be issued, which is substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization, other laws
of general applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether enforceability is considered in
a proceeding at law or in equity); and the Securities and the Indenture will
conform to the descriptions thereof in the Prospectus;
(i) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
of any of its subsidiaries is bound or to which any of the property or assets of
the Company of any of its subsidiaries is subject, which conflict would have a
material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, nor will such action result in any violation of the provisions of
the Articles of Incorporation or By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture,
except the registration under the Act of the Securities, such as have been
obtained under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Securities by the Underwriters;
(j) Neither the Company nor any of its subsidiaries is in
violation of its Articles of Incorporation or By-laws or in default in the
performance or observance of any obligation, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease
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<PAGE> 5
or other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, which default would have a material adverse affect
on the current or future consolidated financial position, shareholders' equity
or results of operations of the Company and its subsidiaries;
(k) The statements set forth in the Prospectus under the
captions "Description of the Notes" and "Description of the Debt Securities"
insofar as they purport to constitute a summary of the terms of the Securities,
are accurate, complete and fair;
(l) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries; and, to the best of
the Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(m) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its subsidiaries, are, to the Company's
knowledge, independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder; and
(n) The Company has initiated a review of its operations and
that of its subsidiaries and any third parties with which the Company or any of
its subsidiaries has a material relationship to evaluate the extent to which the
business or operations of the Company or any of its subsidiaries will be
affected by the Year 2000 Problem. Although such review has not been completed,
as a result of the review that has been conducted to the date hereof, the
Company currently has no reason to believe, and currently does not believe, that
the Year 2000 Problem will have a material adverse effect on the current or
future consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries or result in any material loss or
interference with its business or operations. The "Year 2000 Problem" as used
herein means any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of mechanical or
electrical systems of any kind will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters 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, from ________, 1999 to the Time of Delivery hereunder, the
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms and
conditions set forth in the Prospectus.
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<PAGE> 6
4. (a) The Securities to be purchased by each Underwriter hereunder
will be represented by one or more definitive global Securities in book-entry
form which will be deposited by or on behalf of the Company with The Depository
Trust Company ("DTC") or its designated custodian. The Company will deliver the
Securities to Goldman, Sachs & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Company to Goldman, Sachs & Co. at least forty-eight hours in advance, by
causing DTC to credit the Securities to the account of Goldman, Sachs & Co. at
DTC. The Company will cause the certificates representing the Securities to be
made available to Goldman, Sachs & Co. for checking at least twenty-four hours
prior to the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on __________, 1999
or such other time and date as Goldman, Sachs & Co. and the Company may agree
upon in writing. Such time and date are herein called the "Time of Delivery."
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(h) hereof, will be delivered at the offices
of Brown & Wood LLP, One World Trade Center, New York, New York 10048 (the
"Closing Location"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at _____ p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you
and to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430(a) under the Act; to make no further amendment or
any supplement to the Registration Statement or Prospectus prior to the Time of
Delivery which shall be disapproved by you promptly after reasonable notice
thereof, such approval not to be unreasonably withheld or delayed; to advise
you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(b), 14 or 15(c) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Securities; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the
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<PAGE> 7
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in any event of the issuance of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for so long as may be necessary to complete the distribution of
the Securities (but in no event shall the Company be required to bear the
expenses of such compliance after nine months after the date hereof); provided
that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to time,
to furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify you and upon your request to
file such document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Securities at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as you
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof and
continuing to and including the later of the Time of Delivery and such earlier
time as you may notify the Company, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any
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<PAGE> 8
securities of the Company which mature more than one year after such Time of
Delivery and which are substantially similar to the Securities without your
prior written consent; and
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Indenture, the Blue Sky
and Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses
of the Trustee and any agent of the Trustee and the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions.
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(c) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or (to
the best of the Company's knowledge) threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
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<PAGE> 9
\
(b) Brown & Wood LLP, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions dated the Time of Delivery,
with respect to the matters covered in paragraphs (i), (vi), (vii), (viii),
(xi), (xii) and (xiii) of subsection (c) below as well as such other related
matters as you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters.
(c) Lane Powell Spears Lubersky LLP, counsel for the Company,
shall have furnished to you their written opinion, dated the Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Washington, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus;
(iii) The Company is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification;
(iv) Nordstrom Credit, Inc. has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, and are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of matters
of fact upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that they believe that both you and they
are justified in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected, individually or in the aggregate, to
have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such proceedings
are threatened by governmental authorities or others;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(vii) The Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture, except to the extent that enforcement thereof may be
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<PAGE> 10
limited by (A) bankruptcy, insolvency, reorganization, moratorium, or other laws
now or hereafter in effect relating to or affecting creditors' rights generally,
and (B) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and the Securities and the
Indenture conform to the descriptions thereof in the Prospectus;
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming due execution and delivery
by the Trustee, constitutes a valid and legally binding instrument, enforceable
against the Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether enforceability is considered in a proceeding at law or in
equity); and the Indenture has been duly qualified under the Trust Indenture
Act;
(ix) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the Securities, the
Indenture, and this Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company is
subject, which conflict, breach, violation or default would have a material
adverse effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company, nor will such
actions result in any violation of the provisions of the Articles of
Incorporation or By-laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its material properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or the Indenture
except such as have been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, orders, 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;
(xi) The statements set forth in the Prospectus
under the captions "Description of the Notes" and "Description of the Debt
Securities" insofar as they purport to constitute a summary of the terms of the
Securities, and insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and fair in all
material respects;
(xii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
schedules and financial data derived from accounting records included therein,
as to which such counsel need express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to
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<PAGE> 11
form in all material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder;
(xiii) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the Company prior to
the Time of Delivery (other than the financial statements and related schedules
and financial data derived from accounting records included therein, and the
Statement of Eligibility of the Trustee on Form T-1, as to which such counsel
need express no opinion) appear on their face to comply as to form in all
material respects with the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (xi) of this Section 7(c) such counsel
has no reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to the Time
of Delivery (other than the financial statements and related schedules and
financial data derived from accounting records included therein and the
Statement of Eligibility of the Trustee on Form T-1, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
schedules and financial data derived from accounting records included therein
and the Statement of Eligibility of the Trustee on Form T-1, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules and financial data derived from
accounting records included therein and the Statement of Eligibility of the
Trustee on Form T-1, as to which such counsel need express no opinion) contains
an 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; and such counsel does not know of
any amendment to the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed as an exhibit
to the Registration Statement or required to be incorporated by reference into
the Prospectus or required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or described as
required;
(d) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at the Time of Delivery,
Deloitte & Touche LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you,
to the effect set forth in Annex I;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity,
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<PAGE> 12
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any change in
the capital stock (other than upon exercise of options issued pursuant to the
Company's stock option plans described in the Prospectus and the repurchase of
common stock pursuant to the Company's stock repurchase program described in the
Prospectus) or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any case described in
clause (i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that is has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date hereof there shall not have occurred
any of the following:
(i) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange or on the NASDAQ Stock
Market;
(ii) a suspension or material limitation in trading
in the Company's securities on the NASDAQ Stock Market;
(iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or
(iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
clause (iv) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus;
(h) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company
reasonably satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (e) of this Section and as to such other matters as you may reasonably
request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become
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subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs & Co.
expressly for use therein and provided, further, that the Company shall not be
liable to any Underwriter under the indemnity agreement in this subsection (a)
with respect to any Preliminary Prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter results from the fact that such
Underwriter sold Securities to a person as to whom it shall be established that
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated by reference)
in any case where such delivery is required by the Act if the Company has
previously furnished copies thereof to such Underwriter and the loss, claim,
damage or liability of such Underwriter results from an untrue statement or
omission of a material fact contained in the Preliminary Prospectus which was
identified at such time to such Underwriter and corrected in the Prospectus
(excluding any document incorporated by reference) or in the Prospectus as then
amended or supplemented (excluding documents incorporated by reference) and such
correction would have cured the defect giving rise to such loss, claim, damage
or liability.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Goldman, Sachs
& Co. expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
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<PAGE> 14
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim, and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
Notwithstanding any provision hereof to the contrary, with respect to any action
or claim, no indemnifying party shall be responsible for the fees and expenses
of more than one counsel (plus any local counsel) to the indemnified parties in
circumstances in which the indemnified parties do not have potentially
conflicting defenses available.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the
14
<PAGE> 15
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any reasonable legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties reasonably
satisfactory to the Company to purchase such Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or parties reasonably satisfactory to you to purchase such Securities on
such terms. In the event that, within the respective prescribed periods, you
notify the Company that you have so arranged for the purchase of such
Securities, or the Company notifies you that it has so arranged for the purchase
of such Securities, you or the Company shall have the right to postpone the Time
of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a)
15
<PAGE> 16
above, the aggregate principal amount of such Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Securities which
such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Securities which such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a) above, the aggregate principal
amount of Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Securities, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 6
and 8 hereof.
12. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you in care of Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004, Attention: Registration Department; and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: Corporate Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon
16
<PAGE> 17
request. Any such statements, requests, notices or agreement shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C., is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
NORDSTROM, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
17
<PAGE> 18
Accepted as of the date hereof:
Goldman, Sachs & Co.
Credit Suisse First Boston Corporation
Merrill Lynch & Company
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By:_______________________________
(Goldman, Sachs & Co.)
18
<PAGE> 19
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount of
Securities To Be
Underwriter Purchased
----------- ---------
<S> <C>
Goldman, Sachs & Co. $
Credit Suisse First Boston Corporation $
Merrill Lynch, Pierce, Fenner & Smith
Incorporated. $
-------------------
Total $200,000,000
</TABLE>
19
<PAGE> 20
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, prospective
financial statement and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, prospective
financial statements and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, copies of which
have been separately furnished to the representatives of the
Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the
unaudited condensed consolidated statement of income, consolidated
balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included in the Company's quarterly report on
Form 10-Q incorporated by reference into the Prospectus as indicated in
their reports thereon copies of which have been separately furnished to
the Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in the related in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing
came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in
al material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the
Company for the five most recent years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such five fiscal years
which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
1
<PAGE> 21
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the
basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the
unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus, for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements form which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in Clause (A) and
any unaudited income statement data and balance sheet items
included in the Prospectus and referred to in Clause (B) were
not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
2
<PAGE> 22
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated
by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
3
<PAGE> 1
EXHIBIT 4.3
NORDSTROM, INC.,
Issuer
to
NORWEST BANK COLORADO, NATIONAL ASSOCIATION,
Trustee
---------------
INDENTURE
---------------
Dated as of January ___, 1999
Debt Securities
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
--------------- -----------------
<S> <C>
Section 310(a)(1)........................................................6.7
(a)(2)..................................................................6.7
(b).....................................................................6.8
Section 312(a)...........................................................7.1
(b).....................................................................7.2
(c).....................................................................7.2
Section 313(a)...........................................................7.3
(b)(2)..................................................................7.3
(c).....................................................................7.3
(d).....................................................................7.3
Section 314(a)...........................................................7.4
(c)(1)..................................................................1.2
(c)(2)..................................................................1.2
(e).....................................................................1.2
(f).....................................................................1.2
Section 316(a) (last sentence)...........................................1.1
(a)(1)(A)..............................................................5.12
(a)(1)(B)..............................................................5.13
(b).....................................................................5.8
Section 317(a)(1)........................................................5.3
(a)(2)..................................................................5.4
(b)....................................................................10.3
Section 318(a)...........................................................1.8
</TABLE>
- ------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
RECITALS ........................................................................1
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.............................................................1
Act.............................................................................2
Additional Amounts..............................................................2
Affiliate.......................................................................2
Authenticating Agent............................................................2
Authorized Newspaper............................................................2
Authorized Officer..............................................................3
Bearer Security.................................................................3
Board of Directors..............................................................3
Board Resolution................................................................3
Business Day....................................................................3
Commission......................................................................3
Common Stock....................................................................3
Company.........................................................................3
Company Request.................................................................3
Consolidated Net Assets.........................................................3
Conversion Event................................................................4
Corporate Trust Office..........................................................4
Corporation.....................................................................4
Coupon..........................................................................4
Currency........................................................................4
CUSIP number....................................................................4
Debt............................................................................4
Defaulted Interest..............................................................4
Dollars or $....................................................................4
Event of Default................................................................4
Foreign Currency................................................................5
Government Obligations..........................................................5
Holder..........................................................................5
Indenture.......................................................................5
Independent Public Accountants..................................................6
Indexed Security................................................................6
Interest........................................................................6
Interest Payment Date...........................................................6
Judgment Currency...............................................................6
Legal Holidays..................................................................6
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C>
Maturity........................................................................6
Mortgage........................................................................6
New York Banking Day............................................................6
Office or Agency................................................................6
Officers' Certificate...........................................................6
Operating Property..............................................................7
Opinion of Counsel..............................................................7
Original Issue Discount Security................................................7
Outstanding.....................................................................7
Person..........................................................................8
Place of Payment................................................................8
Predecessor Security............................................................8
Redemption Date.................................................................9
Redemption Price................................................................9
Registered Security.............................................................9
Regular Record Date.............................................................9
Required Currency...............................................................9
Responsible Officer.............................................................9
Restricted Subsidiary...........................................................9
Security or Securities..........................................................9
Security Register and Security Registrar........................................9
Special Record Date.............................................................9
Stated Maturity.................................................................9
Subsidiary.....................................................................10
Trust Indenture Act............................................................10
Trustee........................................................................10
United States..................................................................10
United States Alien............................................................10
U.S. Depositary or Depositary..................................................10
Vice President.................................................................10
Section 1.2. Compliance Certificates and Opinions...................................11
Section 1.3. Form of Documents Delivered to Trustee.................................11
Section 1.4. Acts of Holders........................................................12
Section 1.5. Notices, etc. to Trustee and Company...................................14
Section 1.6. Notice to Holders of Securities; Waiver................................14
Section 1.7. Language of Notices....................................................15
Section 1.8. Conflict with Trust Indenture Act......................................15
Section 1.9. Effect of Headings and Table of Contents...............................15
Section 1.10. Successors and Assigns.................................................16
Section 1.11. Separability Clause....................................................16
Section 1.12. Benefits of Indenture..................................................16
Section 1.13. Governing Law..........................................................16
Section 1.14. Legal Holidays.........................................................16
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C>
Section 1.15. Counterparts............................................................16
Section 1.16. Judgment Currency.......................................................17
Section 1.17. No Security Interest Created............................................17
Section 1.18. Limitation on Individual Liability......................................17
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally..........................................................18
Section 2.2. Form of Trustee's Certificate of Authentication..........................18
Section 2.3. Securities in Global Form................................................19
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.....................................20
Section 3.2. Currency; Denominations..................................................24
Section 3.3. Execution, Authentication, Delivery and Dating...........................24
Section 3.4. Temporary Securities.....................................................26
Section 3.5. Registration, Transfer and Exchange......................................26
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.........................30
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights to Interest and
Certain Additional Amounts Preserved.....................................31
Section 3.8. Persons Deemed Owners....................................................33
Section 3.9. Cancellation.............................................................33
Section 3.10. Computation of Interest..................................................33
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge...............................................34
Section 4.2. Defeasance and Covenant Defeasance.......................................35
Section 4.3. Application of Trust Money...............................................39
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C>
ARTICLE 5
REMEDIES
Section 5.1. Events of Default...........................................................39
Section 5.2. Acceleration of Maturity; Rescission and Annulment..........................41
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.............42
Section 5.4. Trustee May File Proofs of Claim............................................43
Section 5.5. Trustee May Enforce Claims without Possession of Securities or Coupons......43
Section 5.6. Application of Money Collected..............................................44
Section 5.7. Limitations on Suits........................................................44
Section 5.8. Unconditional Right of Holders to Receive Principal and any Premium,
Interest and Additional Amounts.4
Section 5.9. Restoration of Rights and Remedies..........................................45
Section 5.10. Rights and Remedies Cumulative..............................................45
Section 5.11. Delay or Omission Not Waiver................................................45
Section 5.12. Control by Holders of Securities............................................46
Section 5.13. Waiver of Past Defaults.....................................................46
Section 5.14. Waiver of Usury, Stay or Extension Laws.....................................47
Section 5.15. Undertaking for Costs.......................................................47
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee...................................................47
Section 6.2. Notice of Defaults..........................................................49
Section 6.3. Not Responsible for Recitals or Issuance of Securities......................49
Section 6.4. May Hold Securities.........................................................50
Section 6.5. Money Held in Trust.........................................................50
Section 6.6. Compensation and Reimbursement..............................................50
Section 6.7. Corporate Trustee Required; Eligibility.....................................51
Section 6.8. Resignation and Removal; Appointment of Successor...........................51
Section 6.9. Acceptance of Appointment by Successor......................................53
Section 6.10. Merger, Conversion, Consolidation or Succession to Business.................54
Section 6.11. Appointment of Authenticating Agent.........................................54
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders...................56
Section 7.2. Preservation of Information; Communications to Holders......................57
</TABLE>
iv
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C>
Section 7.3. Reports by Trustee..........................................................57
Section 7.4. Reports by Company..........................................................57
ARTICLE 8
CONSOLIDATION, AMALGAMATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms........................58
Section 8.2. Successor Person Substituted for Company....................................59
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders..........................59
Section 9.2. Supplemental Indentures with Consent of Holders.............................60
Section 9.3. Execution of Supplemental Indentures........................................62
Section 9.4. Effect of Supplemental Indentures...........................................62
Section 9.5. Reference in Securities to Supplemental Indentures..........................62
Section 9.6. Conformity with Trust Indenture Act.........................................62
Section 9.7. Notice of Supplemental Indenture............................................62
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and Additional Amounts..........63
Section 10.2. Maintenance of Office or Agency.............................................63
Section 10.3. Money for Securities Payments to Be Held in Trust...........................64
Section 10.4. Additional Amounts..........................................................66
Section 10.5. Limitation on Liens.........................................................67
Section 10.6. Corporate Existence.........................................................68
Section 10.7. Waiver of Certain Covenants.................................................68
Section 10.8. Company Statement as to Compliance; Notice of Certain Defaults..............68
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article....................................................69
Section 11.2. Election to Redeem; Notice to Trustee.......................................69
Section 11.3. Selection by Trustee of Securities to be Redeemed...........................69
</TABLE>
v
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<TABLE>
<CAPTION>
<S> <C>
Section 11.4. Notice of Redemption........................................................70
Section 11.5. Deposit of Redemption Price.................................................71
Section 11.6. Securities Payable on Redemption Date.......................................71
Section 11.7. Securities Redeemed in Part.................................................72
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article....................................................73
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.......................73
Section 12.3. Redemption of Securities for Sinking Fund...................................74
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article....................................................74
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article....................................................75
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called...................................75
Section 15.2. Call, Notice and Place of Meetings..........................................75
Section 15.3. Persons Entitled to Vote at Meetings........................................76
Section 15.4. Quorum; Action..............................................................76
Section 15.5. Determination of Voting Rights; Conduct and Adjournment of Meetings.........77
Section 15.6. Counting Votes and Recording Action of Meetings.............................77
</TABLE>
vi
<PAGE> 9
INDENTURE, dated as of January ___, 1999 (the "Indenture"), between
NORDSTROM, INC., a corporation duly organized and existing under the laws of the
State of Washington (hereinafter called the "Company"), having its principal
executive office located at 1617 Sixth Avenue, Suite 500, Seattle, Washington
98101, and NORWEST BANK COLORADO, NATIONAL ASSOCIATION, a national banking
association, duly organized and existing under the laws of the United States
(hereinafter called the "Trustee"), having its Corporate Trust Office located at
1740 Broadway, Denver, Colorado 80274.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase from time to
time of the Securities by the Holders (as herein defined) thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities of any series thereof and any Coupons (as herein
defined) as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
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(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America and, except as
otherwise herein expressly provided, the terms "generally accepted
accounting principles" or "GAAP" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted in the United States of America at the date
or time of such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both", not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act", when used with respect to any Holders, has the meaning specified
in Section 1.4.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.11 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Authorized Officer" means, when used with respect to the Company, the
Chairman of the Board of Directors, a Vice Chairman, a President, any Vice
President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company.
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<PAGE> 11
"Bearer Security" means any Security in the form established pursuant
to Section 2.1 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, 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, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any capital stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by
the Chairman of the Board of Directors, a President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Consolidated Net Assets" means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any indebtedness for money
borrowed having a maturity of less than 12 months from the date of the most
recent consolidated balance sheet of the Company but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower) and (ii) all investments in Subsidiaries other than Restricted
Subsidiaries, all as set forth on the most recent consolidated balance sheet of
the Company and computed in accordance with generally accepted accounting
principles.
"Conversion Event" means the cessation of use of a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the
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<PAGE> 12
settlement of transactions by a central bank or other public institutions of or
within the international banking community or any currency unit or composite
currency for the purposes for which it was established.
"Corporate Trust Office" means the principal office of the Trustee in
the City of Denver, State of Colorado, at which at any particular time its
corporate trust business shall be administered, which office at the date of the
execution of this Indenture is located at 1740 Broadway, Denver, Colorado 80274,
except that with respect to the presentation of Securities for payment or for
registration of transfer or exchange and the location of the Securities
Registrar, such term means the office or agency of the Trustee at which, at any
particular time, its corporate agency business shall be conducted.
"Corporation" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Rating Service, CUSIP Service Bureau.
"Debt" has the meaning specified in Section 10.5.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the Euro, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency
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<PAGE> 13
or instrumentality of the United States of America or such other government or
governments, in each case where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government or governments, and which, in the
case of (i) or (ii), are not callable or redeemable at the option of the issuer
or issuers thereof, and shall also include a depositary receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of or other amount with respect
to any such Government Obligation held by such custodian for the account of the
holder of a 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 custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced
by such depositary receipt.
"Holder", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 3.1 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.4, includes such Additional
Amounts.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.16.
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<PAGE> 14
"Legal Holidays" has the meaning specified in Section 1.14.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"Mortgage" means with respect to any property or assets, any mortgage,
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
the foregoing).
"New York Banking Day" has the meaning specified in Section 1.16.
"Office" or "Agency", with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 10.2 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 10.2 or, to the
extent designated or required by Section 10.2 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a President or a Vice President, and by the Chief Financial Officer,
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company, that complies with the requirements of Section 314(e) of the
Trust Indenture Act and is delivered to the Trustee.
"Operating Property" means any real property or equipment located
within the United States and owned by, or leased to, the Company or any of its
Subsidiaries that has a net book value (after deduction of accumulated
depreciation) in excess of 1.0% of Consolidated Net Assets.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 5.2.
"Outstanding", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee
or the Security Registrar or delivered to the Trustee or
the Security Registrar for cancellation;
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<PAGE> 15
(b) any such Security for whose payment at the Maturity
thereof money in the necessary amount has been
theretofore deposited pursuant hereto (other than
pursuant to Section 4.2) 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 Securities and any Coupons
appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the
Trustee has been made;
(c) any such Security with respect to which the Company
has effected defeasance pursuant to the terms hereof,
except to the extent provided in Section 4.2;
(d) any such Security which has been paid pursuant to
Section 3.6 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, unless there
shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a
bona fide purchaser in whose hands such Security is a
valid obligation of the Company; and
(e) any such Security converted or exchanged as
contemplated by this Indenture into Common Stock or
other securities, if the terms of such Security
provide for such conversion or exchange pursuant to
Section 3.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purposes shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which
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<PAGE> 16
shall have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee (A) the pledgee's right
so to act with respect to such Securities and (B) that the pledgee is not the
Company or any other obligor upon the Securities or any Coupons appertaining
thereto or an Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 2.1 which is registered in a Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, or any trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
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<PAGE> 17
"Restricted Subsidiary" means any Subsidiary of the Company that owns
any Operating Property.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subsidiary" means any Corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors, managers or trustees of such Corporation,
irrespective of whether or not at the time stock of any other class or classes
of such Corporation shall have or might have voting power by reason of the
happening of any contingency, is at the time, directly or indirectly, owned or
controlled by the Company or by one or more Subsidiaries thereof, or by the
Company and one or more Subsidiaries thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean only the Trustee with
respect to the Securities of such series.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
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<PAGE> 18
"United States Alien", except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depositary" or "Depositary" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depositary or Depositary by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depositary" or "Depositary" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, 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
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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 condition or covenant 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 condition
or covenant has been complied with; and
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(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. 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, provided
that such officer, after reasonable inquiry, has no reason to believe and does
not believe that the Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, provided that such counsel, after reasonable inquiry, has no
reason to believe and does not believe that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the
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Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 15.6.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S. Depositary
that is a Holder of a global Security, may make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. Depositary that is a
Holder of a global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such U.S. Depositary's
standing instructions and customary practices.
The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depositary entitled under the procedures of such U.S. Depositary
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent,
waiver or other Act, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice, consent,
waiver or other Act shall be valid or effective if made, given or taken more
than 90 days after such record date.
(2) The fact and date of the execution by any Person of any such
instrument or writing referred to in this Section 1.4 may be proved in any
reasonable manner; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(i) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (ii) such Bearer Security is produced
to the Trustee by some other Person, or (iii) such Bearer Security is
surrendered in exchange for a Registered Security, or (iv) such Bearer Security
is no longer Outstanding. The ownership, principal amount and serial numbers of
Bearer Securities
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held by the Person so executing such instrument or writing and the date of the
commencement and the date of the termination of holding the same may also be
proved in any other manner which the Company and the Trustee deem sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such Act is made upon such Security.
Section 1.5. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Treasurer, at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
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(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper in
such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 1.7. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
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Section 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed by operation of
Section 318(c) thereof, such required provision shall control.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders of Securities or Coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.13. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
Section 1.14. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or exchangeable,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and such Securities need not be converted or exchanged on such date
but such payment may be made, and such Securities may be converted or exchanged,
on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or
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Maturity or on such last day for conversion or exchange, and no interest shall
accrue on the amount payable on such date or at such time for the period from
and after such Interest Payment Date, Stated Maturity, Maturity or last day for
conversion or exchange, as the case may be, to such next succeeding Business
Day.
Section 1.15. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 1.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the requisite amount of the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to be closed.
Section 1.17. No Security Interest Created.
Subject to the provisions of Section 10.5, nothing in this Indenture or
in any Securities, express or implied, shall be construed to constitute a
security interest 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 1.18. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company, either directly or through the Company, whether by virtue of any
constitution,
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statute or rule of law, or by the enforcement of any assessment or penalty 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, shareholders, officers or directors, as such, of the Company, 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 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, shareholder, 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 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 Security.
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, the Trustee's certificate of authentication
shall be in substantially the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By
------------------------------------------
Authorized Officer
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver, in each case at the Company's
expense, 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 3.3 or 3.4 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 3.1.
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ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant
to Section 3.4, 3.5, 3.6, 9.5 or 11.7, upon repayment in part of any
Registered Security of such series pursuant to Article Thirteen, upon
surrender in part of any Registered Security for conversion into Common
Stock or exchange for other securities pursuant to its terms, or
pursuant to or as contemplated by the terms of such Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global form and
(i) whether such Securities are to be issued in temporary or permanent
global form or both, (ii) whether beneficial owners of interests in any
such global Security may exchange such interests for Securities of the
same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such exchanges may
occur, if other than in the manner specified in Section 3.5, and (iii)
the name of the Depositary or the U.S. Depositary, as the case may be,
with respect to any such global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in
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respect of an Interest Payment Date therefor prior to the
exchange, if any, of such temporary Bearer Security for
definitive Securities shall be paid to any clearing organization
with respect to the portion of such temporary Bearer Security
held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which
any such interest payment received by a clearing organization
will be credited to the Persons entitled to interest payable on
such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal of
such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the notice,
if any, to Holders regarding the determination of interest on a
floating rate Security and the manner of giving such notice, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer or exchange,
any of such Securities may be surrendered for conversion or exchange
and notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served, the extent to which, or
the manner in which, any interest payment or Additional Amounts on a
global Security on an Interest Payment Date, will be paid and the
manner in which any principal of or premium, if any, on any global
Security will be paid;
(10) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(11) whether the Company is obligated to redeem or purchase
any of such Securities pursuant to any sinking fund or analogous
provision or at the option of any Holder thereof and, if so, the date
or dates on which, the period or periods within which, the price or
prices at which and the other terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
such Securities so redeemed or purchased;
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(12) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than denominations
of $1,000 and any integral multiple thereof, and the denominations in
which any of such Securities that are Bearer Securities shall be
issuable if other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible
into shares of Common Stock and/or exchangeable for other securities,
and if so, the terms and conditions upon which such Securities will be
so convertible or exchangeable, and any deletions from or modifications
or additions to this Indenture to permit or to facilitate the issuance
of such convertible or exchangeable Securities or the administration
thereof;
(14) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2 or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and
any deletions from or modifications of or additions to the terms of
this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more Currencies, commodities,
equity securities, equity indices or other indices), and, if so, the
terms and conditions upon which and the manner in which such amounts
shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of
such Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
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(19) whether either or both of Section 4.2(2) relating to
defeasance or Section 4.2(3) relating to covenant defeasance shall not
be applicable to the Securities of such series, or any covenants in
addition to those specified in Section 4.2(3) relating to the
Securities of such series which shall be subject to covenant of
defeasance, and any deletions from, or modifications or additions to,
the provisions of Article Four in respect of the Securities of such
series;
(20) whether any of such Securities are to be issuable upon
the exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
(21) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates, documents or
conditions;
(22) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities; and
(23) any other terms of such Securities and any other
deletions from or modifications or additions to this Indenture in
respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest
thereon, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officers' Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officers' Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officers' Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officers' Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities. If a separate entity is named as a Trustee in connection with
issuance of any series of Securities, the Company agrees to enter into a
supplemental indenture in connection with such issuance.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
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Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, a President, its Chief Financial Officer, its Treasurer or a Vice
President under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. Coupons shall be executed on
behalf of the Company by the Treasurer or any Assistant Treasurer of the
Company. The signature of any of these officers on the Securities or any Coupons
appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities and Coupons or did not hold such offices at the date
of original issuance of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 3.1 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons,
if any, have been established in conformity with the provisions of this
Indenture;
(b) all conditions precedent to the authentication and delivery
of such Securities and Coupons, if any, appertaining thereto, have been
complied with and that such Securities and Coupons, when completed by
appropriate insertions, executed under the Company's corporate seal and
attested by duly authorized officers of the Company,
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delivered by duly authorized officers of the Company to the Trustee for
authentication pursuant to this Indenture, and authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent
conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally, and subject to general principles
of equity (regardless of whether enforcement is sought in a proceeding
in equity or at law) and will entitle the Holders thereof to the
benefits of this Indenture; such Opinion of Counsel need express no
opinion as to the availability of equitable remedies;
(c) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and Coupons, if any, have
been complied with; and
(d) this Indenture has been qualified under the Trust Indenture
Act; and
(2) an Officers' Certificate stating that all conditions precedent to
the execution, authentication and delivery of such Securities and Coupons, if
any, appertaining thereto, have been complied with and that, to the best
knowledge of the Persons executing such certificate, no event which is, or after
notice or lapse of time would become, an Event of Default with respect to any of
the Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company
that the Trustee authenticate and deliver Securities of such series for original
issue will be deemed to be a certification by the Company that all conditions
precedent provided for in this Indenture relating to authentication and delivery
of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 2.2 or 6.11 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of
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its authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 3.5. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to
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time the Security Registrar for any series of Securities; provided that no such
removal or replacement shall be effective until a successor Security Registrar
with respect to such series of Securities shall have been appointed by the
Company and shall have accepted such appointment by the Company. In the event
that the Trustee shall not be or shall cease to be Security Registrar with
respect to a series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. There shall be only
one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 10.2, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date and before the opening of business at such
Office or Agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be
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surrendered without the Coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, shall not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the depositary is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days of the date the Company is so informed
in writing, (ii) the Company executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (iii)
an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such global Security shall be surrendered
from time to time by the U.S. Depositary or such other Depositary as shall be
specified in the Company Order with respect thereto, and in accordance with
instructions given to the Trustee and the U.S. Depositary or such other
Depositary, as the case may be (which instructions shall be in writing but need
not be contained in or accompanied by an Officers' Certificate or be accompanied
by an Opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities as described above
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged, which (unless such Securities are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the global Security shall be issuable only in the form
in which the Securities are issuable, as provided in or pursuant to this
Indenture) shall be in the
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form of Bearer Securities or Registered Securities, or any combination thereof,
as shall be specified by the beneficial owner thereof, but subject to the
satisfaction of any certification or other requirements to the issuance of
Bearer Securities; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities of the same series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that (unless otherwise provided in or
pursuant to this Indenture) no Bearer Security delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to such Depositary or the
U.S. Depositary, as the case may be, or such other Depositary or U.S. Depositary
referred to above in accordance with the instructions of the Company referred to
above. If a Registered Security is issued in exchange for any portion of a
global Security after the close of business at the Office or Agency for such
Security where such exchange occurs on or after (i) any Regular Record Date for
such Security and before the opening of business at such Office or Agency on the
next succeeding Interest Payment Date, or (ii) any Special Record Date for such
Security and before the opening of business at such Office or Agency on the
related proposed date for payment of interest or Defaulted Interest, as the case
may be, interest shall not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such Registered Security,
but shall be payable on such Interest Payment Date or proposed date for payment,
as the case may be, only to the Person to whom interest in respect of such
portion of such global Security shall be payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge by the Company shall be made for any registration of
transfer or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge and
any other expenses (including fees and expenses of the Trustee) that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.5 or 11.7 not
involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of Securities of like tenor
and the same series under Section 11.3 and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange any
Registered Security selected for redemption in whole or in part, except in the
case of any Security to be redeemed in
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part, the portion thereof not to be redeemed, or (iii) to exchange any Bearer
Security selected for redemption except, to the extent provided with respect to
such Bearer Security, that such Bearer Security may be exchanged for a
Registered Security of like tenor and the same series, provided that such
Registered Security shall be immediately surrendered for redemption with written
instruction for payment consistent with the provisions of this Indenture or (iv)
to issue, register the transfer of or exchange any Security which, in accordance
with its terms, has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Security not to be so repaid.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons appertaining thereto
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
Notwithstanding the foregoing provisions of this Section 3.6, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 10.2, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section 3.6, as amended or supplemented pursuant
to this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
Section 3.7. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the 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 Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed by the Company in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered Security, the
Special Record Date therefor 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 on or prior to the date of the proposed
payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this
Clause provided. The Special Record Date for the payment of such
Defaulted Interest 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 notification to the Trustee of the proposed payment. The
Trustee shall, in the name and at the expense of the Company, cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be
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mailed, first-class postage prepaid, to the Holder of such Registered
Security (or a Predecessor Security thereof) at his address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company cause a similar notice to be
published at least once in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the
Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the United
States.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible into shares of Common Stock or exchangeable for other securities,
which Registered Security is converted or exchanged after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security with respect to which the Stated Maturity is prior to
such Interest Payment Date), interest with respect to which the Stated Maturity
is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Registered Security which is converted or exchanged, interest with
respect to which the Stated Maturity is after the date of conversion or exchange
of such Registered Security shall not be payable.
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Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 3.5 and
3.7) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such global Security, and such Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. 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 of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 3.9. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
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ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated
and delivered and all Coupons appertaining thereto (other than (i)
Coupons appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of such series and maturing after
such exchange whose surrender is not required or has been waived as
provided in Section 3.5, (ii) Securities and Coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.6, (iii) Coupons appertaining to
Securities of such series called for redemption and maturing after the
relevant Redemption Date whose surrender has been waived as provided in
Section 11.7, and (iv) Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i)
or (ii) below, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, 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 deposited
or caused to be deposited with the Trustee as trust funds in trust for
such purpose, money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation, including
the principal of, any premium and interest on, and any Additional
Amounts with respect to such Securities and
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any Coupons appertaining thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the
Maturity thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series and any Coupons appertaining thereto; 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 as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 10.4 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 4.1(1)(b)), and with respect to any
rights to convert or exchange such Securities into Common Stock or other
securities shall survive.
Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of (i) defeasance of
the Securities of or within a series under clause (2) of this Section 4.2 shall
not be applicable with respect to the Securities of such series or (ii) covenant
defeasance of the Securities of or within a series under clause (3) of this
Section 4.2 shall not be applicable with respect to the Securities of such
series, then such provisions, together with the other provisions of this Section
4.2 (with such modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities), shall be applicable to such Securities and any
Coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any Coupons
appertaining thereto, elect to have Section 4.2(2) or Section 4.2(3) be applied
to such Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Section 4.2.
(2) Upon the Company's exercise of the above option applicable to this
Section 4.2(2) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 4.2 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company
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shall be deemed to have paid and discharged the entire indebtedness represented
by such Outstanding Securities and any Coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of clause (5) of
this Section 4.2 and the other Sections of this Indenture referred to in clauses
(i) and (ii) below, and to have satisfied all of its other obligations under
such Securities and any Coupons appertaining thereto and this Indenture insofar
as such Securities and any Coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities and any Coupons appertaining thereto to receive, solely
from the trust fund described in clause (4) of this Section 4.2 and as more
fully set forth in such clause, payments in respect of the principal of (and
premium, if any) and interest, if any, on, and Additional Amounts, if any, with
respect to, such Securities and any Coupons appertaining thereto when such
payments are due, and any rights of such Holder to convert such Securities into
Common Stock or exchange such Securities for other securities, (ii) the
obligations of the Company and the Trustee with respect to such Securities under
Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 10.4 (but only to
the extent that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant to
Section 4.2(4)(a) below), and with respect to any rights to convert such
Securities into Common Stock or exchange such Securities for other securities,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Section 4.2. The Company may exercise its option under this
Section 4.2(2) notwithstanding the prior exercise of its option under clause (3)
of this Section 4.2 with respect to such Securities and any Coupons appertaining
thereto.
(3) Upon the Company's exercise of the option to have this Section
4.2(3) apply with respect to any Securities of or within a series, the Company
shall be released from its obligations under Section 10.5, and, to the extent
specified pursuant to Section 3.1(19), any other covenant applicable to such
Securities, with respect to such Outstanding Securities and any Coupons
appertaining thereto on and after the date the conditions set forth in clause
(4) of this Section 4.2 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any Coupons appertaining thereto shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any Coupons
appertaining thereto, the Company may omit to comply with, and shall have no
liability in respect of, any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 5.1(4) or 5.1(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and Coupons appertaining thereto shall be
unaffected thereby.
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(4) The following shall be the conditions to application of clause (2)
or (3) of this Section 4.2 to any Outstanding Securities of or within a series
and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.7 who shall agree to comply with the
provisions of this Section 4.2 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any Coupons appertaining thereto, (1) an
amount in Dollars or in such Foreign Currency in which such Securities
and any Coupons appertaining thereto are then specified as payable at
Stated Maturity, or (2) Government Obligations applicable to such
Securities and Coupons appertaining thereto (determined on the basis of
the Currency in which such Securities and Coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case,
in an amount, sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally recognized
firm of Independent Public Accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee)
to pay and discharge, (y) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any Coupons
appertaining thereto at the Stated Maturity of such principal or
installment of principal or premium or interest and (z) any mandatory
sinking fund payments or analogous payments applicable to such
Outstanding Securities and any Coupons appertaining thereto on the days
on which such payments are due and payable in accordance with the terms
of this Indenture and of such Securities and any Coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such
Securities and any Coupons appertaining thereto shall have occurred and
be continuing on the date of such deposit and, with respect to
defeasance only, at any time during the period ending on the 123rd day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this
Section 4.2, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (i) the Company has received from the Internal
Revenue Service a letter ruling, or there has been published by the
Internal Revenue Service a Revenue Ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable
Federal income tax
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law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under clause (3) of this
Section 4.2, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Outstanding
Securities and any Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that, after the 123rd day after the
date of deposit, all money and Government Obligations (or other
property as may be provided pursuant to Section 3.1) (including the
proceeds thereof) deposited or caused to be deposited with the Trustee
(or other qualifying trustee) pursuant to this clause (4) to be held in
trust will not be subject to any case or proceeding (whether voluntary
or involuntary) in respect of the Company under any Federal or State
bankruptcy, insolvency, reorganization or other similar law, or any
decree or order for relief in respect of the Company issued in
connection therewith.
(g) 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 or covenant defeasance under
clause (2) or (3) of this Section 4.2 (as the case may be) have been
complied with.
(h) Notwithstanding any other provisions of this Section
4.2(4), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any
Security, if, after a deposit referred to in Section 4.2(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.1 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
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payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the
"Trustee") against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited pursuant to this Section 4.2 or the
principal or interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 which, in
the opinion of a nationally recognized firm of Independent Public Accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 4.2.
Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and any
Coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional Amounts,
if any; but such money and Government Obligations need not be segregated from
other funds except to the extent required by law.
ARTICLE 5
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
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supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of such
series, or any Additional Amounts payable with respect thereto, when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of such series, or any Additional Amounts payable with respect thereto,
when such principal or premium becomes or such Additional Amounts become due and
payable at their Maturity; or
(3) default in the deposit of any sinking fund payment when and as due
by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture or the Securities (other than a covenant or
warranty a default in the performance or the breach of which is elsewhere in
this Section specifically dealt with or which has been expressly included in
this Indenture solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company
in an involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(b) a decree or order adjudging the Company to be
insolvent, or approving a petition seeking reorganization, arrangement,
adjustment or composition of the Company and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other similar
official of the Company or of any substantial part of the property of
the Company, or ordering the winding up or liquidation of the affairs
of the Company; or
(6) the commencement by the Company of a voluntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or of a
voluntary proceeding seeking to be adjudicated insolvent or the consent by the
Company to the entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any insolvency proceedings against it, or
the
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filing by the Company of a petition or answer or consent seeking
reorganization, arrangement, adjustment or composition of the Company or relief
under any applicable 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 or similar official of the Company or any
substantial part of the property of the Company or the making by the Company of
an assignment for the benefit of creditors, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (5) or (6)
of Section 5.1) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (5) or (6) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
At any time after a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of not less than a majority in principal amount of
the Outstanding 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 of money
sufficient to pay
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such series and
any Coupon appertaining thereto,
(b) the principal of and any premium on any Securities of
such series which have become due otherwise than by such declaration of
acceleration and interest thereon and any Additional Amounts with
respect thereto at the rate or rates borne by or provided for in such
Securities,
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue installments of any
interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and
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(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due the
Trustee under Section 6.6; and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of, any premium and interest on, and
any Additional Amounts with respect to Securities of such series which shall
have become due solely by such declaration of acceleration, shall have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on or
any Additional Amounts with respect to any Security or any Coupon appertaining
thereto when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or any premium
on any Security or any Additional Amounts with respect thereto at their
Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 6.6.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
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rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of any series or the property of the Company or such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of any
applicable series, of the principal and any premium, interest and
Additional Amounts owing and unpaid in respect of the Securities and
any Coupons appertaining thereto and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents or
counsel) and of the Holders of Securities or any Coupons appertaining
thereto allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding
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instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery or judgment, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, shall be for the ratable benefit of each and
every Holder of the Securities or Coupons in respect of which such judgment has
been recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any Coupons for principal and any premium, interest
and Additional Amounts in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the aggregate amounts due and payable on such
Securities and Coupons for principal and any premium, interest and
Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.7. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee such
indemnity as is reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal
and any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 3.5 and 3.7) interest on, and any Additional Amounts with respect to
such Security or payment of such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
at the option of such Holder if provided in or pursuant to this Indenture, on
the date such repayment is due) and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the consent of such
Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to any Holder of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities of such series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of
the other Holders of Securities of such series not joining in such
action.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security of
such series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, or to retract (prior to the requisite percentage for such
waiver to become effective having been obtained) any such waiver previously
given, whether or not such Holders remain Holders after such record date;
provided, that such waiver shall be effected no later than the 90th day after
such record date.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14. Waiver of Usury, Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so)
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 5.15. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 5.15 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock or other securities in accordance with
its terms.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(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;
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(2) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper
or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(3) in case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(4) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order
(in each case, other than delivery of any Security, together with any
Coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 3.3 which shall be sufficiently evidenced
as provided therein) and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(5) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically prescribed)
may, in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(6) the Trustee may consult with counsel and the written
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 the absence of bad faith on its
part and in reliance thereon;
(7) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request or direction of any of the Holders of Securities of any
series or any Coupons appertaining thereto pursuant to this Indenture,
unless such Holders shall have offered to the Trustee such security or
indemnity as is reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(8) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, coupon or other paper or document, but
the Trustee, in its discretion, may but shall not be obligated to make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine, during
business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; and
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(9) 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.
(10) the Trustee shall not be liable for any action taken or
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts, acted in bad
faith or engaged in willful misconduct;
(11) the Authenticating Agent, Paying Agent, and Security
Registrar shall have the same protections as the Trustee set forth
hereunder; and
(12) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with an Act of the Holders hereunder, and, to the extent not
so provided herein, with respect to any act requiring the Trustee to
exercise its own discretion, 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 or any Securities, unless it shall be proved that, in
connection with any such action taken, suffered or omitted or any such
act, the Trustee was negligent, acted in bad faith or engaged in
willful misconduct.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 7.3(3), notice of such default hereunder actually known to a Responsible
Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any), or interest, if any, on, or Additional
Amounts or any sinking fund or purchase fund installment with respect to, any
Security of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the best interest of
the Holders of Securities and Coupons of such series; and provided, further,
that in the case of any default of the character specified in Section 5.1(5)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 60 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
Section 6.3. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
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Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 6.4. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company.
Section 6.6. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture or arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as are attributable to the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee and its agents, officers,
directors and employees for, and to hold them harmless against, any
loss, liability or expense incurred without negligence or bad faith on
their part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder.
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As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
To the extent permitted by law, any compensation or expense incurred by
the Trustee after a default specified in or pursuant to Section 5.1 is intended
to constitute an expense of administration under any then applicable bankruptcy
or insolvency law. "Trustee" for purposes of this Section 6.6 shall include any
predecessor Trustee but the negligence or bad faith of any Trustee shall not
affect the rights of any other Trustee under this Section 6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee
and shall apply with equal force and effect to the Trustee in its capacity as
Authenticating Agent, Paying Agent or Security Registrar.
Section 6.7. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, that is eligible under Section
310(a)(1) of the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of its 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. 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 6.8. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 6.9.
(2) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.9 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and the
Company.
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(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to Securities of any series after written request therefor by
the Company or any Holder of a Security of such series who has been a
bona fide Holder of a Security of such series for at least six months,
or
(b) the Trustee shall cease to be eligible under Section
6.7 and shall fail to resign after written request therefor by the
Company or any such Holder, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of such series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.9. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.9, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 6.9, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail,
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postage prepaid, to the Holders of Registered Securities, if any, of such series
as their names and addresses appear in the Security Register and, if Securities
of such series are issued as Bearer Securities, by publishing notice of such
event once in an Authorized Newspaper in each Place of Payment located outside
the United States. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
(7) In no event shall any retiring Trustee be liable for the acts or
omissions of any successor Trustee hereunder.
Section 6.9. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties hereunder of the retiring Trustee; but, on the request
of the Company or such successor Trustee, such retiring Trustee, upon payment of
its charges, shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and,
subject to Section 10.3, 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
6.6.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of such successor
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Trustee relates other than as hereinafter expressly set forth, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or such
successor Trustee, such retiring Trustee, upon payment of its charges with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates and subject to Section 10.3 shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, subject to its claim,
if any, provided for in Section 6.6.
(3) Upon request of any Person appointed hereunder as a 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 (1) or (2) of this Section, as the
case may be.
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 6.10. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 6.11. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent must be acceptable to the Company and, except
as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the
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Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act, is authorized under applicable law and by its charter to
act as an Authenticating Agent and has a combined capital and surplus (computed
in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.6.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
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This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By _____________________________________
as Authenticating Agent
By _____________________________________
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series
not later than May 15 and November 15 of the year or upon such other
dates as are set forth in or pursuant to the Board Resolution or
indenture supplemental hereto authorizing such series, a list, in each
case in such form as the Trustee may reasonably require, of the names
and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the 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 so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
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Section 7.2. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
Section 7.3. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with the first
May 15 following the first issuance of Securities pursuant to Section 3.1, if
required by Section 313(a) or 313(b) of the Trust Indenture Act, the Trustee
shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a)
of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
Section 7.4. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(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 shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and
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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 Holders within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute notice of any information contained therein or determinable
from information contained herein, including the Company's compliance with any
of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
ARTICLE 8
CONSOLIDATION, AMALGAMATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate or amalgamate with or merge into any
other Person (whether or not affiliated with the Company), or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Company), and
the Company shall not permit any other Person (whether or not affiliated with
the Company) to consolidate or amalgamate with or merge into the Company or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to the Company; unless:
(1) in case the Company shall consolidate or amalgamate with or merge
into another Person or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person, the Person formed by
such consolidation or amalgamation 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 as an entirety or substantially as an entirety shall
be a Corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall expressly
assume, by an indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed by the successor Person and delivered to
the Trustee the due and punctual payment of the principal of, any premium and
interest on and any Additional Amounts with respect to all the Securities and
the performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Company to be performed or observed and shall
provide for conversion or exchange rights in accordance with the provisions of
the Securities of any series that are convertible or exchangeable into Common
Stock or other securities;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no
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Event of Default or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, amalgamation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
Section 8.2. Successor Person Substituted for Company.
Upon any consolidation or amalgamation by the Company with or merger of
the Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 8.1, the successor Person formed by such
consolidation or amalgamation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein; and thereafter, except in the case of a lease, the predecessor Person
shall be released from all obligations and covenants under this Indenture, the
Securities and the Coupons.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power herein
conferred upon the Company; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of, any premium or
interest on or any Additional Amounts with respect to Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such
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action shall not adversely affect the interests of the Holders of Outstanding
Securities of any series or any Coupons appertaining thereto in any material
respect; or
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 2.1 and 3.1; or
(5) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 6.9;
or
(6) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not adversely affect the interests of the
Holders of Securities of any series then Outstanding or any Coupons appertaining
thereto in any material respect; or
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental indenture); or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided that
any such action shall not adversely affect the interests of any Holder of an
Outstanding Security of such series and any Coupons appertaining thereto or any
other Outstanding Security or Coupon in any material respect; or
(10) to secure the Securities pursuant to Section 10.5 or otherwise; or
(11) to make provisions with respect to conversion or exchange rights
of Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities then
Outstanding.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company's 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
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rights of the Holders of Securities of such series under this Indenture or of
the Securities of such series; provided, however, that no such supplemental
indenture, without the consent of the Holder of each Outstanding Security
affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Company to pay Additional Amounts
pursuant to Section 10.4 (except as contemplated by Section 8.1(1) and permitted
by Section 9.1(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2 or the amount
thereof provable in bankruptcy pursuant to Section 5.4, change the redemption
provisions or adversely affect the right of repayment at the option of any
Holder as contemplated by Article Thirteen, or change the Place of Payment,
Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption Date
or, in the case of repayment at the option of the Holder, on or after the date
for repayment), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 15.4 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.7, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, or
(4) make any change that adversely affects the right to convert or
exchange any Security into or for Common Stock or other securities in accordance
with its terms.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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Section 9.3. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and an
Officers' Certificate stating that all conditions precedent to the execution of
such supplemental indenture have been fulfilled. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 9.5. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 9.6. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.7. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 9.2, the Company shall transmit to
the Holders of Outstanding Securities of any series affected thereby a notice
setting forth the substance of such supplemental indenture.
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ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
Section 10.2. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company shall maintain a
Paying Agent in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The 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, except that Bearer Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment at the place specified for the purpose with respect to such Securities
as provided in or pursuant to this Indenture, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however,
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if amounts owing with respect to any Bearer Securities shall be payable in
Dollars, payment of principal of, any premium or interest on and any Additional
Amounts with respect to any such Security may be made at the Corporate Trust
Office of the Trustee or any Office or Agency designated by the Company in the
Borough of Manhattan, The City of New York, if (but only if) payment of the full
amount of such principal, premium, interest or Additional Amounts at all offices
outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
of Securities Minneapolis, Minnesota, and initially appoints the office of the
Trustee at Norwest Bank Colorado, N.A., Corporate Trust Operations, Sixth Street
and Marquette Avenue, Minneapolis, Minnesota 55479-0113.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
Section 10.3. Money for 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 Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a sum (in the currency
or currencies, currency unit or units or composite currency or currencies
described in the preceding paragraph) sufficient to pay the principal or any
premium,
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interest or Additional Amounts so becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any payment of
principal, any premium or interest on or any Additional Amounts with respect to
the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The 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 terms 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 sums.
Except as otherwise provided herein or pursuant hereto, 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, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities of such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal and any
premium or interest or Additional Amounts shall have become due and payable, any
unclaimed balance of such money then remaining will be repaid to the Company.
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Section 10.4. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding the payment of Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
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Section 10.5. Limitation on Liens.
The Company agrees that it will not, and will not permit any Restricted
Subsidiary to, create, incur, issue, assume or guarantee any notes, bonds,
debentures or other similar evidence of indebtedness for money borrowed
("Debt"), secured by a Mortgage upon any Operating Property, or upon shares of
capital stock or Debt issued by any Restricted Subsidiary and owned by the
Company or any Restricted Subsidiary, whether owned at the date of this
Indenture or hereafter acquired, without effectively providing concurrently that
the Outstanding Securities hereunder (together with, if the Company shall so
determine, any other Debt of the Company or such Restricted Subsidiary then
existing or thereafter created which is not subordinate to the Securities) shall
be secured equally and ratably with or, at the option of the Company, prior to
such Debt so long as such Debt shall be so secured, unless, at the time of such
creation, incurrence, issuance, assumption or guarantee, after giving effect
thereto and to the retirement of any Debt which is concurrently being retired,
the aggregate amount of all such Debt secured by Mortgages which would otherwise
be subject to such restrictions (other than any Debt secured by Mortgages
permitted in Clauses (1) through (7) of this Section 10.5 would not exceed the
greater of (i) 15% of Consolidated Net Assets and (ii) $150,000,000; provided,
however, that this Section shall not apply to, and there shall be excluded from
Debt in any computation under this Section, Debt secured by:
(1) Mortgages on property existing at the time of the acquisition
thereof;
(2) Mortgages on property of a Corporation existing at the time such
Corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of such Corporation (or a division thereof) as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary, provided
that any such Mortgage does not extend to any property owned by the Company or
Restricted Subsidiary immediately prior to such merger, consolidation, sale,
lease or disposition;
(3) Mortgages on property of a corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(4) Mortgages in favor of the Company or a Restricted Subsidiary;
(5) Mortgages to secure all or part of the cost of acquisition,
construction, development or improvement of the underlying property, or to
secure Debt incurred to provide funds for any such purpose, provided that the
commitment of the creditor to extend the credit secured by any such Mortgage
shall have been obtained not later than 365 days after the later of (A) the
completion of the acquisition, construction, development or improvement of such
property or (B) the placing in operation of such property;
(6) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
thereof, to secure partial, progress, advance or other payments; and
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(7) Mortgages existing on the date of this Indenture or any extension,
renewal, replacement or refunding of any Debt secured by a Mortgage existing on
the date of this Indenture or referred to in clauses (1) to (3) or (5) of this
Section 10.5, provided that the principal amount of Debt secured thereby and not
otherwise authorized by clauses (1) to (3) or (5) shall not exceed the principal
amount of Debt, plus any premium or fee payable in connection with any such
extension, renewal, replacement or refunding, so secured at the time of such
extension, renewal, replacement or refunding.
Section 10.6. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and their respective rights (charter and
statutory) and franchises; provided, however, that the foregoing shall not
obligate the Company or any Subsidiary to preserve any such right or franchise
if the Company or any Subsidiary shall determine that the preservation thereof
is no longer desirable in the conduct of its business or the business of such
Subsidiary and that the loss thereof is not disadvantageous in any material
respect to any Holder.
Section 10.7. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.5 or 10.6 with respect to
the Securities of any series if before the time for such compliance the Holders
of at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
Section 10.8. Company Statement as to Compliance; Notice of Certain
Defaults.
(1) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating that
(a) a review of the activities of the Company during such
year and of its performance under this Indenture has been made under
his or her supervision, and
(b) to the best of his or her knowledge, based on such
review, (a) the Company has complied with all the conditions and
covenants imposed on it under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such condition or
covenant, specifying each such default known to him or her and the
nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event
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has occurred and is continuing, specifying each such event known to him
and the nature and status thereof.
(2) The Company shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any Event of Default or any event
which after notice or lapse of time or both would become an Event of Default
pursuant to clause (4) of Section 5.1.
(3) The Trustee shall have no duty to monitor the Company's compliance
with the covenants contained in this Article 10 other than as specifically set
forth in this Section 10.8.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of (a) less than all of the Securities of any series or (b) all
of the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted into Common Stock or exchanged for other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted or exchanged during a selection of Securities to be redeemed
shall be treated by the Trustee as Outstanding for the purpose of such
selection.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will receive,
without charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due
and payable upon each such Security or portion thereof to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities, together (in the case of
Bearer Securities) with all Coupons appertaining thereto, if any, maturing after
the Redemption Date, are to be
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surrendered for payment of the Redemption Price and any accrued interest and
Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by all
Coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing Coupon or Coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and no
Registered Securities of such series are to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 3.5 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible into
Common Stock or exchangeable for other securities, the conversion or exchange
price or rate, the date or dates on which the right to convert or exchange the
principal of the Securities of such series to be redeemed will commence or
terminate and the place or places where such Securities may be surrendered for
conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers
of such Securities, if any (or any other numbers used by a Depositary to
identify such Securities).
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 11.4, with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified pursuant to Section 3.1 or in the
Securities of such series) any accrued interest on and Additional Amounts with
respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein
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specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest and the Coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with any accrued interest and Additional Amounts to
the Redemption Date; provided, however, that, except as otherwise provided in or
pursuant to this Indenture or the Bearer Securities of such series, installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of Coupons
for such interest (at an Office or Agency located outside the United States
except as otherwise provided in Section 10.2), and provided, further, that,
except as otherwise specified in or pursuant to this Indenture or the Registered
Securities of such series, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates therefor
according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 10.2.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company 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
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the
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Company shall execute, and the Trustee shall authenticate and deliver to the
U.S. Depositary or other Depositary for such Security in global form as shall be
specified in the Company Order with respect thereto to the Trustee, without
service charge, a new Security in global form in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Security in global
form so surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If, as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
12.2, the principal amount of Securities of such series to be redeemed in order
to satisfy the remaining sinking fund payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the
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Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that series purchased by the Company having an unpaid principal
amount equal to the cash payment requested to be released to the Company.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 13.1, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
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ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 15.1, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 15.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request (whichever
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shall be required pursuant to Section 1.6) or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the Holders
of Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The City of
New York, or, if Securities of such series are to be issued as Bearer
Securities, in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in clause (1) of this Section.
Section 15.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
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Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 15.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be proved in the manner specified in Section 1.4
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.4 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 15.2(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.2 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 15.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial
76
<PAGE> 85
numbers of the Outstanding Securities of such series held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] NORDSTROM, INC.
Attest:
By _____________________________________
Name:
Title:
[SEAL] NORWEST BANK COLORADO, NATIONAL
ASSOCIATION
as Trustee
Attest:
By _____________________________________
Name:
Title:
77
<PAGE> 86
STATE OF WASHINGTON )
) ss.
CITY AND COUNTY OF KING )
The foregoing instrument was acknowledged before me,
_____________________, this _____ day of January, 1999 by
_________________________, as ____________________ of Nordstrom, Inc., a
Washington corporation.
Witness my hand and official seal.
_________________________________________
Notary Public for the State of Washington
__________________________________
My Commission expires:
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me,
_____________________, this _____ day of January, 1999 by
____________________________, as ____________________ of Norwest Bank Colorado,
National Association, a national banking association.
Witness my hand and official seal.
_________________________________________
Notary Public for the State of Washington
__________________________________
My Commission expires:
78
<PAGE> 1
NORDSTROM, INC.,
Issuer
to
NORWEST BANK COLORADO, NATIONAL ASSOCIATION,
Trustee
---------------
INDENTURE
---------------
Dated as of January ___, 1999
Subordinated Debt Securities
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
--------------- -----------------
<S> <C>
Section 310(a)(1).............................................................6.7
(a)(2).......................................................................6.7
(b)..........................................................................6.8
Section 312(a)................................................................7.1
(b)..........................................................................7.2
(c)..........................................................................7.2
Section 313(a)................................................................7.3
(b)(2).......................................................................7.3
(c)..........................................................................7.3
(d)..........................................................................7.3
Section 314(a)................................................................7.4
(c)(1).......................................................................1.2
(c)(2).......................................................................1.2
(e)..........................................................................1.2
(f)..........................................................................1.2
Section 316(a) (last sentence)................................................1.1
(a)(1)(A)...................................................................5.12
(a)(1)(B)...................................................................5.13
(b)..........................................................................5.8
Section 317(a)(1).............................................................5.3
(a)(2).......................................................................5.4
(b).........................................................................10.3
Section 318(a)................................................................1.8
</TABLE>
- ------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS .................................................................................................1
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions......................................................................................1
Act......................................................................................................2
Additional Amounts.......................................................................................2
Affiliate................................................................................................2
Authenticating Agent.....................................................................................2
Authorized Newspaper.....................................................................................2
Authorized Officer.......................................................................................2
Bearer Security..........................................................................................3
Board of Directors.......................................................................................3
Board Resolution.........................................................................................3
Business Day.............................................................................................3
Commission...............................................................................................3
Common Stock.............................................................................................3
Company..................................................................................................3
Company Request..........................................................................................3
Consolidated Net Assets..................................................................................3
Conversion Event.........................................................................................3
Corporate Trust Office...................................................................................4
Corporation..............................................................................................4
Coupon...................................................................................................4
Currency.................................................................................................4
CUSIP number.............................................................................................4
Debt.....................................................................................................4
Defaulted Interest.......................................................................................4
Dollars or $.............................................................................................4
Event of Default.........................................................................................4
Foreign Currency.........................................................................................4
Government Obligations...................................................................................4
Holder...................................................................................................5
Indenture................................................................................................5
Independent Public Accountants...........................................................................5
Indexed Security.........................................................................................5
Interest.................................................................................................5
Interest Payment Date....................................................................................5
Judgment Currency........................................................................................5
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
Legal Holidays...........................................................................................6
Maturity.................................................................................................6
Mortgage.................................................................................................6
New York Banking Day.....................................................................................6
Office or Agency.........................................................................................6
Officers' Certificate....................................................................................6
Operating Property.......................................................................................6
Opinion of Counsel.......................................................................................6
Original Issue Discount Security.........................................................................6
Outstanding..............................................................................................6
Person...................................................................................................8
Place of Payment.........................................................................................8
Predecessor Security.....................................................................................8
Redemption Date..........................................................................................8
Redemption Price.........................................................................................8
Registered Security......................................................................................8
Regular Record Date......................................................................................8
Required Currency........................................................................................8
Responsible Officer......................................................................................8
Restricted Subsidiary....................................................................................9
Security or Securities...................................................................................9
Security Register and Security Registrar.................................................................9
Senior Indebtedness......................................................................................9
Special Record Date......................................................................................9
Stated Maturity..........................................................................................9
Subsidiary..............................................................................................10
Trust Indenture Act.....................................................................................10
Trustee.................................................................................................10
United States...........................................................................................10
United States Alien.....................................................................................10
U.S. Depositary or Depositary...........................................................................10
Vice President..........................................................................................10
Section 1.2. Compliance Certificates and Opinions............................................................11
Section 1.3. Form of Documents Delivered to Trustee..........................................................11
Section 1.4. Acts of Holders.................................................................................12
Section 1.5. Notices, etc. to Trustee and Company............................................................14
Section 1.6. Notice to Holders of Securities; Waiver.........................................................14
Section 1.7. Language of Notices.............................................................................15
Section 1.8. Conflict with Trust Indenture Act...............................................................15
Section 1.9. Effect of Headings and Table of Contents........................................................15
Section 1.10. Successors and Assigns..........................................................................15
Section 1.11. Separability Clause.............................................................................15
Section 1.12. Benefits of Indenture...........................................................................16
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
Section 1.13. Governing Law...................................................................................16
Section 1.14. Legal Holidays..................................................................................16
Section 1.15. Counterparts....................................................................................16
Section 1.16. Judgment Currency...............................................................................16
Section 1.17. No Security Interest Created....................................................................17
Section 1.18. Limitation on Individual Liability..............................................................17
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally.................................................................................18
Section 2.2. Form of Trustee's Certificate of Authentication.................................................18
Section 2.3. Securities in Global Form.......................................................................18
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series............................................................19
Section 3.2. Currency; Denominations.........................................................................23
Section 3.3. Execution, Authentication, Delivery and Dating..................................................23
Section 3.4. Temporary Securities............................................................................25
Section 3.5. Registration, Transfer and Exchange.............................................................26
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities................................................29
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional
Amounts Preserved...............................................................................30
Section 3.8. Persons Deemed Owners...........................................................................32
Section 3.9. Cancellation....................................................................................33
Section 3.10. Computation of Interest.........................................................................33
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge......................................................................33
Section 4.2. Defeasance and Covenant Defeasance..............................................................35
Section 4.3. Application of Trust Money......................................................................39
ARTICLE 5
REMEDIES
Section 5.1. Events of Default...............................................................................39
Section 5.2. Acceleration of Maturity; Rescission and Annulment..............................................40
</TABLE>
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<PAGE> 6
<TABLE>
<S> <C>
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.................................41
Section 5.4. Trustee May File Proofs of Claim................................................................42
Section 5.5. Trustee May Enforce Claims without Possession of Securities or Coupons..........................43
Section 5.6. Application of Money Collected..................................................................43
Section 5.7. Limitations on Suits............................................................................44
Section 5.8. Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts..............................................................................44
Section 5.9. Restoration of Rights and Remedies..............................................................45
Section 5.10. Rights and Remedies Cumulative..................................................................45
Section 5.11. Delay or Omission Not Waiver....................................................................45
Section 5.12. Control by Holders of Securities................................................................45
Section 5.13. Waiver of Past Defaults.........................................................................46
Section 5.14. Waiver of Usury, Stay or Extension Laws.........................................................46
Section 5.15. Undertaking for Costs...........................................................................47
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.......................................................................47
Section 6.2. Notice of Defaults..............................................................................49
Section 6.3. Not Responsible for Recitals or Issuance of Securities..........................................49
Section 6.4. May Hold Securities.............................................................................49
Section 6.5. Money Held in Trust.............................................................................50
Section 6.6. Compensation and Reimbursement..................................................................50
Section 6.7. Corporate Trustee Required; Eligibility.........................................................51
Section 6.8. Resignation and Removal; Appointment of Successor...............................................51
Section 6.9. Acceptance of Appointment by Successor..........................................................52
Section 6.10. Merger, Conversion, Consolidation or Succession to Business.....................................54
Section 6.11. Appointment of Authenticating Agent.............................................................54
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.......................................56
Section 7.2. Preservation of Information; Communications to Holders..........................................56
Section 7.3. Reports by Trustee..............................................................................56
Section 7.4. Reports by Company..............................................................................57
</TABLE>
iv
<PAGE> 7
<TABLE>
<S> <C>
ARTICLE 8
CONSOLIDATION, AMALGAMATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms............................................57
Section 8.2. Successor Person Substituted for Company........................................................58
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders..............................................59
Section 9.2. Supplemental Indentures with Consent of Holders.................................................60
Section 9.3. Execution of Supplemental Indentures............................................................61
Section 9.4. Effect of Supplemental Indentures...............................................................61
Section 9.5. Reference in Securities to Supplemental Indentures..............................................61
Section 9.6. Conformity with Trust Indenture Act.............................................................62
Section 9.7. Notice of Supplemental Indenture................................................................62
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and Additional Amounts..............................62
Section 10.2. Maintenance of Office or Agency.................................................................62
Section 10.3. Money for Securities Payments to Be Held in Trust...............................................64
Section 10.4. Additional Amounts..............................................................................65
Section 10.5. Limitation on Liens.............................................................................66
Section 10.6. Corporate Existence.............................................................................67
Section 10.7. Waiver of Certain Covenants.....................................................................67
Section 10.8. Company Statement as to Compliance; Notice of Certain Defaults..................................67
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article........................................................................68
Section 11.2. Election to Redeem; Notice to Trustee...........................................................68
Section 11.3. Selection by Trustee of Securities to be Redeemed...............................................68
Section 11.4. Notice of Redemption............................................................................69
Section 11.5. Deposit of Redemption Price.....................................................................70
Section 11.6. Securities Payable on Redemption Date...........................................................71
Section 11.7. Securities Redeemed in Part.....................................................................72
</TABLE>
v
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<TABLE>
<S> <C>
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article........................................................................72
Section 12.2. Satisfaction of Sinking Fund Payments with Securities...........................................72
Section 12.3. Redemption of Securities for Sinking Fund.......................................................73
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article........................................................................73
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article........................................................................74
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.......................................................74
Section 15.2. Call, Notice and Place of Meetings..............................................................74
Section 15.3. Persons Entitled to Vote at Meetings............................................................75
Section 15.4. Quorum; Action..................................................................................75
Section 15.5. Determination of Voting Rights; Conduct and Adjournment of Meetings.............................76
Section 15.6. Counting Votes and Recording Action of Meetings.................................................77
ARTICLE 16
SUBORDINATION OF SECURITIES
Section 16.1. Agreement to Subordinate........................................................................77
Section 16.2. Default on Senior Indebtedness..................................................................78
Section 16.3. Liquidation; Dissolution; Bankruptcy............................................................78
Section 16.4. Subrogation.....................................................................................79
Section 16.5. Trustee to Effectuate Subordination.............................................................80
Section 16.6. Notice by the Company...........................................................................80
Section 16.7. Rights of the Trustee; Holders of Senior Indebtedness...........................................81
Section 16.8. Subordination May Not Be Impaired...............................................................81
</TABLE>
vi
<PAGE> 9
INDENTURE, dated as of January ___, 1999 (the "Indenture"), between
NORDSTROM, INC., a corporation duly organized and existing under the laws of the
State of Washington (hereinafter called the "Company"), having its principal
executive office located at 1617 Sixth Avenue, Suite 500, Seattle, Washington
98101, and NORWEST BANK COLORADO, NATIONAL ASSOCIATION, a national banking
association, duly organized and existing under the laws of the United States
(hereinafter called the "Trustee"), having its Corporate Trust Office located at
1740 Broadway, Denver, Colorado 80274.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase from time to
time of the Securities by the Holders (as herein defined) thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities of any series thereof and any Coupons (as herein
defined) as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
1
<PAGE> 10
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America and, except as
otherwise herein expressly provided, the terms "generally accepted
accounting principles" or "GAAP" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted in the United States of America at the date
or time of such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both", not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act", when used with respect to any Holders, has the meaning specified
in Section 1.4.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.11 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Authorized Officer" means, when used with respect to the Company, the
Chairman of the Board of Directors, a Vice Chairman, a President, any Vice
President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company.
2
<PAGE> 11
"Bearer Security" means any Security in the form established pursuant
to Section 2.1 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, 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, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any capital stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by an
Authorized Officer of the Company, and delivered to the Trustee.
"Consolidated Net Assets" means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any indebtedness for money
borrowed having a maturity of less than 12 months from the date of the most
recent consolidated balance sheet of the Company but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower) and (ii) all investments in Subsidiaries other than Restricted
Subsidiaries, all as set forth on the most recent consolidated balance sheet of
the Company and computed in accordance with generally accepted accounting
principles.
"Conversion Event" means the cessation of use of a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the
3
<PAGE> 12
settlement of transactions by a central bank or other public institutions of or
within the international banking community or any currency unit or composite
currency for the purposes for which it was established.
"Corporate Trust Office" means the principal office of the Trustee in
the City of Denver, State of Colorado, at which at any particular time its
corporate trust business shall be administered, which office at the date of the
execution of this Indenture is located at 1740 Broadway, Denver, Colorado 80274,
except that with respect to the presentation of Securities for payment or for
registration of transfer or exchange and the location of the Securities
Registrar, such term means the office or agency of the Trustee at which, at any
particular time, its corporate agency business shall be conducted.
"Corporation" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Rating Service, CUSIP Service Bureau.
"Debt" has the meaning specified in Section 10.5.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the Euro, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency
4
<PAGE> 13
or instrumentality of the United States of America or such other government or
governments, in each case where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government or governments, and which, in the
case of (i) or (ii), are not callable or redeemable at the option of the issuer
or issuers thereof, and shall also include a depositary receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of or other amount with respect
to any such Government Obligation held by such custodian for the account of the
holder of a 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 custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced
by such depositary receipt.
"Holder", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 3.1 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.4, includes such Additional
Amounts.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.16.
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<PAGE> 14
"Legal Holidays" has the meaning specified in Section 1.14.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"Mortgage" means with respect to any property or assets, any mortgage,
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
the foregoing).
"New York Banking Day" has the meaning specified in Section 1.16.
"Office" or "Agency", with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 10.2 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 10.2 or, to the
extent designated or required by Section 10.2 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a President or a Vice President, and by the Chief Financial Officer,
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company, that complies with the requirements of Section 314(e) of the
Trust Indenture Act and is delivered to the Trustee.
"Operating Property" means any real property or equipment located
within the United States and owned by, or leased to, the Company or any of its
Subsidiaries that has a net book value (after deduction of accumulated
depreciation) in excess of 1.0% of Consolidated Net Assets.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 5.2.
"Outstanding", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee
or the Security Registrar or delivered to the Trustee or
the Security Registrar for cancellation;
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<PAGE> 15
(b) any such Security for whose payment at the Maturity
thereof money in the necessary amount has been
theretofore deposited pursuant hereto (other than
pursuant to Section 4.2) 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
Securities and any Coupons appertaining thereto,
provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(c) any such Security with respect to which the Company has
effected defeasance pursuant to the terms hereof, except
to the extent provided in Section 4.2;
(d) any such Security which has been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered
pursuant to this Indenture, unless there shall have been
presented to the Trustee proof satisfactory to it that
such Security is held by a bona fide purchaser in whose
hands such Security is a valid obligation of the
Company; and
(e) any such Security converted or exchanged as contemplated
by this Indenture into Common Stock or other securities,
if the terms of such Security provide for such
conversion or exchange pursuant to Section 3.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purposes shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which
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<PAGE> 16
shall have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee (A) the pledgee's right
so to act with respect to such Securities and (B) that the pledgee is not the
Company or any other obligor upon the Securities or any Coupons appertaining
thereto or an Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 2.1 which is registered in a Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, or any trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
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<PAGE> 17
"Restricted Subsidiary" means any Subsidiary of the Company that owns
any Operating Property.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Indebtedness" means (i) the principal and premium, if any, and
unpaid interest in respect of (A) indebtedness of the Company for money borrowed
and (B) indebtedness evidenced by securities, debentures (other than the
Securities), bonds or other similar instruments issued by the Company; (ii) all
capital lease obligations of the Company; (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) obligations associated with
derivative products such as interest rate and currency exchange contracts,
foreign exchange contracts, commodity contracts, and similar arrangements; (vi)
all obligations of the types referred to in clauses (i) through (v) above of
other persons for the payment of which the Company is responsible or liable as
an obligor, guarantor or otherwise; (vii) all obligations of the types referred
to in clauses (i) through (vi) above of other persons secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by
the Company) and (viii) renewals, extensions or refundings of any of the
indebtedness referred to in clauses (i) through (vii) above, except, in each
case, for (1) any such indebtedness or obligation that is by its terms
subordinated to or pari passu with the Debt Securities, (2) any indebtedness of
the Company to a wholly owned Subsidiary of the Company, (3) interest accruing
after the filing of a petition initiating certain events of bankruptcy or
insolvency unless such interest is an allowed claim enforceable against the
Company in a proceeding under federal or state bankruptcy laws, and (4) trade
payables.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
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"Subsidiary" means any Corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors, managers or trustees of such Corporation,
irrespective of whether or not at the time stock of any other class or classes
of such Corporation shall have or might have voting power by reason of the
happening of any contingency, is at the time, directly or indirectly, owned or
controlled by the Company or by one or more Subsidiaries thereof, or by the
Company and one or more Subsidiaries thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean only the Trustee with
respect to the Securities of such series.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depositary" or "Depositary" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depositary or Depositary by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depositary" or "Depositary" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
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Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, 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
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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 condition or covenant 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 condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. 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, provided
that such officer, after reasonable inquiry, has no reason to believe and does
not believe that the Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, provided that such counsel, after reasonable inquiry, has no
reason to believe and does not believe that the certificate or opinion or
representations with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 15.6.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S. Depositary
that is a Holder of a global Security, may make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. Depositary that is a
Holder of a global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such U.S. Depositary's
standing instructions and customary practices.
The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depositary entitled under the procedures of such U.S. Depositary
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice,
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consent, waiver or other Act, whether or not such Holders remain Holders after
such record date. No such request, demand, authorization, direction, notice,
consent, waiver or other Act shall be valid or effective if made, given or taken
more than 90 days after such record date.
(2) The fact and date of the execution by any Person of any such
instrument or writing referred to in this Section 1.4 may be proved in any
reasonable manner; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(i) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (ii) such Bearer Security is produced
to the Trustee by some other Person, or (iii) such Bearer Security is
surrendered in exchange for a Registered Security, or (iv) such Bearer Security
is no longer Outstanding. The ownership, principal amount and serial numbers of
Bearer Securities held by the Person so executing such instrument or writing and
the date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security and the Holder
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of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee, any Security Registrar, any Paying Agent or the Company
in reliance thereon, whether or not notation of such Act is made upon such
Security.
Section 1.5. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Treasurer, at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper in
such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice
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<PAGE> 23
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 1.7. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed by operation of
Section 318(c) thereof, such required provision shall control.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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Section 1.12. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto and holders of
Senior Indebtedness, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders of
Securities or Coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 1.13. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
Section 1.14. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or exchangeable,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and such Securities need not be converted or exchanged on such date
but such payment may be made, and such Securities may be converted or exchanged,
on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, and
no interest shall accrue on the amount payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or last day for conversion or exchange, as the case may be, to such next
succeeding Business Day.
Section 1.15. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 1.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the requisite amount of the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be
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discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with clause (a)), in any currency other
than the Required Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or executive
order to be closed.
Section 1.17. No Security Interest Created.
Subject to the provisions of Section 10.5, nothing in this Indenture or
in any Securities, express or implied, shall be construed to constitute a
security interest 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 1.18. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company, 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 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, shareholders, officers or directors, as such, of the Company, 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 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, shareholder, 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 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 Security.
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ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By ______________________________________
Authorized Officer
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and
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may also provide that the aggregate amount of Outstanding Securities represented
thereby may from time to time be increased or reduced to reflect exchanges. Any
endorsement of any Security in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered pursuant to Section 3.3 or 3.4 with respect thereto. Subject to the
provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee shall
deliver and redeliver, in each case at the Company's expense, 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 3.3 or 3.4 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall be
in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 3.1.
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series. The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article 16.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this
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Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 3.4, 3.5, 3.6, 9.5 or
11.7, upon repayment in part of any Registered Security of such series
pursuant to Article Thirteen, upon surrender in part of any Registered
Security for conversion into Common Stock or exchange for other
securities pursuant to its terms, or pursuant to or as contemplated by
the terms of such Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa; (4) if any of such Securities are
to be issuable in global form, when any of such Securities are to be
issuable in global form and (i) whether such Securities are to be
issued in temporary or permanent global form or both, (ii) whether
beneficial owners of interests in any such global Security may exchange
such interests for Securities of the same series and of like tenor and
of any authorized form and denomination, and the circumstances under
which any such exchanges may occur, if other than in the manner
specified in Section 3.5, and (iii) the name of the Depositary or the
U.S. Depositary, as the case may be, with respect to any such global
Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest
Payment Date therefor prior to the exchange, if any, of such temporary
Bearer Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal of
such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable,
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the notice, if any, to Holders regarding the determination of interest
on a floating rate Security and the manner of giving such notice, and
the basis upon which interest shall be calculated if other than that of
a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer or exchange,
any of such Securities may be surrendered for conversion or exchange
and notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served, the extent to which, or
the manner in which, any interest payment or Additional Amounts on a
global Security on an Interest Payment Date, will be paid and the
manner in which any principal of or premium, if any, on any global
Security will be paid;
(10) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(11) whether the Company is obligated to redeem or purchase
any of such Securities pursuant to any sinking fund or analogous
provision or at the option of any Holder thereof and, if so, the date
or dates on which, the period or periods within which, the price or
prices at which and the other terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than denominations
of $1,000 and any integral multiple thereof, and the denominations in
which any of such Securities that are Bearer Securities shall be
issuable if other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible
into shares of Common Stock and/or exchangeable for other securities,
and if so, the terms and conditions upon which such Securities will be
so convertible or exchangeable, and any deletions from or modifications
or additions to this Indenture to permit or to facilitate the issuance
of such convertible or exchangeable Securities or the administration
thereof;
(14) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2 or the method by which such portion is to be determined;
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(15) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and
any deletions from or modifications of or additions to the terms of
this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more Currencies, commodities,
equity securities, equity indices or other indices), and, if so, the
terms and conditions upon which and the manner in which such amounts
shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of
such Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(19) whether either or both of Section 4.2(2) relating to
defeasance or Section 4.2(3) relating to covenant defeasance shall not
be applicable to the Securities of such series, or any covenants in
addition to those specified in Section 4.2(3) relating to the
Securities of such series which shall be subject to covenant of
defeasance, and any deletions from, or modifications or additions to,
the provisions of Article Four in respect of the Securities of such
series;
(20) whether any of such Securities are to be issuable upon
the exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
(21) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates, documents or
conditions;
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(22) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities; and
(23) any other terms of such Securities and any other
deletions from or modifications or additions to this Indenture in
respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest
thereon, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officers' Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officers' Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officers' Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officers' Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities. If a separate entity is named as a Trustee in connection with
issuance of any series of Securities, the Company agrees to enter into a
supplemental indenture in connection with such issuance.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, a President, its Chief Financial Officer, its Treasurer or a Vice
President under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. Coupons shall be executed on
behalf of the Company by the Treasurer or any Assistant Treasurer of the
Company. The signature of any of these officers on the Securities or any Coupons
appertaining thereto may be manual or facsimile.
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Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities and Coupons or did not hold such offices at the date
of original issuance of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 3.1 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with the
provisions of this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining thereto,
have been complied with and that such Securities and Coupons, when
completed by appropriate insertions, executed under the Company's
corporate seal and attested by duly authorized officers of the Company,
delivered by duly authorized officers of the Company to the Trustee for
authentication pursuant to this Indenture, and authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent
conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and will entitle the Holders thereof to
the benefits of this Indenture; such Opinion of Counsel need express no
opinion as to the availability of equitable remedies;
(c) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and Coupons, if any, have
been complied with; and
(d) this Indenture has been qualified under the Trust
Indenture Act; and
(2) an Officers' Certificate stating that all conditions precedent to
the execution, authentication and delivery of such Securities and Coupons, if
any, appertaining thereto, have
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been complied with and that, to the best knowledge of the Persons executing such
certificate, no event which is, or after notice or lapse of time would become,
an Event of Default with respect to any of the Securities shall have occurred
and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company
that the Trustee authenticate and deliver Securities of such series for original
issue will be deemed to be a certification by the Company that all conditions
precedent provided for in this Indenture relating to authentication and delivery
of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 2.2 or 6.11 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall
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cause definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities of the same series and containing terms and
provisions that are identical to those of any temporary Securities, such
temporary Securities shall be exchangeable for such definitive Securities upon
surrender of such temporary Securities at an Office or Agency for such
Securities, without charge to any Holder thereof. Upon surrender for
cancellation of any one or more temporary Securities (accompanied by any
unmatured Coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 3.5. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered
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Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 10.2, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date and before the opening of business at such
Office or Agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if
such Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
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Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depositary is at any time unwilling,
unable or ineligible to continue as Depositary and a successor Depositary is not
appointed by the Company within 90 days of the date the Company is so informed
in writing, (ii) the Company executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (iii)
an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such global Security shall be surrendered
from time to time by the U.S. Depositary or such other Depositary as shall be
specified in the Company Order with respect thereto, and in accordance with
instructions given to the Trustee and the U.S. Depositary or such other
Depositary, as the case may be (which instructions shall be in writing but need
not be contained in or accompanied by an Officers' Certificate or be accompanied
by an Opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities as described above
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged, which (unless such Securities are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the global Security shall be issuable only in the form
in which the Securities are issuable, as provided in or pursuant to this
Indenture) shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof, but subject to the satisfaction of any certification or other
requirements to the issuance of Bearer Securities; provided, however, that no
such exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of the same series to be redeemed and
ending on the relevant Redemption Date; and provided, further, that (unless
otherwise provided in or pursuant to this Indenture) no Bearer Security
delivered in exchange for a portion of a global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly following any
such exchange in part, such global Security shall be returned by the Trustee to
such Depositary or the U.S. Depositary, as the case may be, or such other
Depositary or U.S. Depositary referred to above in accordance with the
instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest
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Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but shall be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such global Security shall be payable in
accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge by the Company shall be made for any registration of
transfer or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge and
any other expenses (including fees and expenses of the Trustee) that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.5 or 11.7 not
involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of Securities of like tenor
and the same series under Section 11.3 and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange any
Registered Security selected for redemption in whole or in part, except in the
case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
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If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons appertaining thereto
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
Notwithstanding the foregoing provisions of this Section 3.6, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 10.2, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section 3.6, as amended or supplemented pursuant
to this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are
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punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name such Security (or one or more Predecessor
Securities) is registered as of the close of business on the Regular Record Date
for such interest.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the 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 Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed by the Company in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered Security, the
Special Record Date therefor 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 on or prior to the date of the proposed
payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this
Clause provided. The Special Record Date for the payment of such
Defaulted Interest 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 notification to the Trustee of the proposed payment. The
Trustee shall, in the name and at the expense of the Company, cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to the Holder of such Registered Security (or a Predecessor Security
thereof) at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper
of general circulation in the Borough of Manhattan, The City of New
York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
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Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the United
States.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible into shares of Common Stock or exchangeable for other securities,
which Registered Security is converted or exchanged after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security with respect to which the Stated Maturity is prior to
such Interest Payment Date), interest with respect to which the Stated Maturity
is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Registered Security which is converted or exchanged, interest with
respect to which the Stated Maturity is after the date of conversion or exchange
of such Registered Security shall not be payable.
Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 3.5 and
3.7) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such global Security, and such Depositary may be treated by the Company, the
Trustee, and any agent of the Company or
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the Trustee as the owner of such global Security for all purposes whatsoever.
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 of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Section 3.9. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated
and delivered and all Coupons appertaining thereto (other than (i)
Coupons appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of such series and maturing after
such exchange whose surrender is not required or has been waived as
provided in Section 3.5, (ii) Securities and Coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.6, (iii) Coupons appertaining to
Securities of such series called for redemption and maturing after the
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relevant Redemption Date whose surrender has been waived as provided in
Section 11.7, and (iv) Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or
(ii) below, any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, 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 deposited
or caused to be deposited with the Trustee as trust funds in trust for
such purpose, money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation, including
the principal of, any premium and interest on, and any Additional
Amounts with respect to such Securities and any Coupons appertaining
thereto, to the date of such deposit (in the case of Securities which
have become due and payable) or to the Maturity thereof, as the case
may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series and any Coupons appertaining thereto; 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 as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of
Additional Amounts,
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if any, with respect to such Securities as contemplated by Section 10.4 (but
only to the extent that the Additional Amounts payable with respect to such
Securities exceed the amount deposited in respect of such Additional Amounts
pursuant to Section 4.1(1)(b)), and with respect to any rights to convert or
exchange such Securities into Common Stock or other securities shall survive.
Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of (i) defeasance of
the Securities of or within a series under clause (2) of this Section 4.2 shall
not be applicable with respect to the Securities of such series or (ii) covenant
defeasance of the Securities of or within a series under clause (3) of this
Section 4.2 shall not be applicable with respect to the Securities of such
series, then such provisions, together with the other provisions of this Section
4.2 (with such modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities), shall be applicable to such Securities and any
Coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any Coupons
appertaining thereto, elect to have Section 4.2(2) or Section 4.2(3) be applied
to such Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Section 4.2.
(2) Upon the Company's exercise of the above option applicable to this
Section 4.2(2) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 4.2 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 4.2 and the other Sections of this Indenture referred
to in clauses (i) and (ii) below, and to have satisfied all of its other
obligations under such Securities and any Coupons appertaining thereto and this
Indenture insofar as such Securities and any Coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any Coupons appertaining thereto to
receive, solely from the trust fund described in clause (4) of this Section 4.2
and as more fully set forth in such clause, payments in respect of the principal
of (and premium, if any) and interest, if any, on, and Additional Amounts, if
any, with respect to, such Securities and any Coupons appertaining thereto when
such payments are due, and any rights of such Holder to convert such Securities
into Common Stock or exchange such Securities for other securities, (ii) the
obligations of the Company and the Trustee with respect to such Securities under
Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 10.4 (but only to
the extent that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant to
Section 4.2(4)(a) below), and with respect to any rights to convert such
Securities into Common Stock or exchange such Securities for other securities,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Section
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4.2. The Company may exercise its option under this Section 4.2(2)
notwithstanding the prior exercise of its option under clause (3) of this
Section 4.2 with respect to such Securities and any Coupons appertaining
thereto.
(3) Upon the Company's exercise of the option to have this Section
4.2(3) apply with respect to any Securities of or within a series, the Company
shall be released from its obligations under Section 10.5, and, to the extent
specified pursuant to Section 3.1(19), any other covenant applicable to such
Securities, with respect to such Outstanding Securities and any Coupons
appertaining thereto on and after the date the conditions set forth in clause
(4) of this Section 4.2 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any Coupons appertaining thereto shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any Coupons
appertaining thereto, the Company may omit to comply with, and shall have no
liability in respect of, any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 5.1(4) or 5.1(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and Coupons appertaining thereto shall be
unaffected thereby.
(4) The following shall be the conditions to application of clause (2)
or (3) of this Section 4.2 to any Outstanding Securities of or within a series
and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.7 who shall agree to comply with the
provisions of this Section 4.2 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any Coupons appertaining thereto, (1) an
amount in Dollars or in such Foreign Currency in which such Securities
and any Coupons appertaining thereto are then specified as payable at
Stated Maturity, or (2) Government Obligations applicable to such
Securities and Coupons appertaining thereto (determined on the basis of
the Currency in which such Securities and Coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case,
in an amount, sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally recognized
firm of Independent Public Accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other
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qualifying trustee) to pay and discharge, (y) the principal of (and
premium, if any) and interest, if any, on such Outstanding Securities
and any Coupons appertaining thereto at the Stated Maturity of such
principal or installment of principal or premium or interest and (z)
any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any Coupons appertaining thereto on the
days on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any Coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is a
party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any Coupons appertaining thereto shall have occurred and
be continuing on the date of such deposit and, with respect to
defeasance only, at any time during the period ending on the 123rd day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this
Section 4.2, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (i) the Company has received from the Internal
Revenue Service a letter ruling, or there has been published by the
Internal Revenue Service a Revenue Ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
(e) In the case of an election under clause (3) of this
Section 4.2, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Outstanding
Securities and any Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that, after the 123rd day after the date of
deposit, all money and Government Obligations (or other property as may
be provided pursuant to Section 3.1) (including the proceeds thereof)
deposited or caused to be deposited with the Trustee (or other
qualifying trustee) pursuant to this clause (4) to be held in trust
will not be subject to any case or proceeding (whether voluntary or
involuntary) in respect of the Company under
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any Federal or State bankruptcy, insolvency, reorganization or other
similar law, or any decree or order for relief in respect of the
Company issued in connection therewith.
(g) 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 or covenant defeasance under
clause (2) or (3) of this Section 4.2 (as the case may be) have been
complied with.
(h) Notwithstanding any other provisions of this Section
4.2(4), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any
Security, if, after a deposit referred to in Section 4.2(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.1 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the
"Trustee") against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited pursuant to this Section 4.2 or the
principal or interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 which, in
the opinion of a nationally recognized firm of Independent Public Accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 4.2.
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Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and any
Coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional Amounts,
if any; but such money and Government Obligations need not be segregated from
other funds except to the extent required by law.
ARTICLE 5
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of such
series, or any Additional Amounts payable with respect thereto, when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of such series, or any Additional Amounts payable with respect thereto,
when such principal or premium becomes or such Additional Amounts become due and
payable at their Maturity; or
(3) default in the deposit of any sinking fund payment when and as due
by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture or the Securities (other than a covenant or
warranty a default in the performance or the breach of which is elsewhere in
this Section specifically dealt with or which has been expressly included in
this Indenture solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the
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Trustee by the Holders of at least 25% in principal amount of the Outstanding
Securities of such series, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company in
an involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company to be insolvent,
or approving a petition seeking reorganization, arrangement, adjustment
or composition of the Company and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of
the Company or of any substantial part of the property of the Company,
or ordering the winding up or liquidation of the affairs of the
Company; or
(6) the commencement by the Company of a voluntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or of a
voluntary proceeding seeking to be adjudicated insolvent or the consent by the
Company to the entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any insolvency proceedings against it, or
the filing by the Company of a petition or answer or consent seeking
reorganization, arrangement, adjustment or composition of the Company or relief
under any applicable 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 or similar official of the Company or any
substantial part of the property of the Company or the making by the Company of
an assignment for the benefit of creditors, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (5) or (6)
of Section 5.1) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by
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the Holders), and upon any such declaration such principal or such lesser amount
shall become immediately due and payable.
If an Event of Default specified in clause (5) or (6) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
At any time after a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of not less than a majority in principal amount of
the Outstanding 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 of money
sufficient to pay
(a) all overdue installments of any interest on and Additional
Amounts with respect to all Securities of such series and any Coupon
appertaining thereto,
(b) the principal of and any premium on any Securities of such
series which have become due otherwise than by such declaration of
acceleration and interest thereon and any Additional Amounts with
respect thereto at the rate or rates borne by or provided for in such
Securities,
(c) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue installments of any interest
and Additional Amounts at the rate or rates borne by or provided for in
such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 6.6; and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of, any premium and interest on, and
any Additional Amounts with respect to Securities of such series which shall
have become due solely by such declaration of acceleration, shall have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on or
any Additional Amounts with respect to any Security or any Coupon appertaining
thereto when such interest or
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Additional Amounts shall have become due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of or any premium
on any Security or any Additional Amounts with respect thereto at their
Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 6.6.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of any series or the property of the Company or such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of any
applicable series, of the principal and any
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premium, interest and Additional Amounts owing and unpaid in respect of
the Securities and any Coupons appertaining thereto and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents or counsel) and of the Holders of Securities or any Coupons
appertaining thereto allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of the
Securities or Coupons in respect of which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.6;
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SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any Coupons for principal and any premium, interest
and Additional Amounts in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the aggregate amounts due and payable on such
Securities and Coupons for principal and any premium, interest and
Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.7. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee such
indemnity as is reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 3.5 and 3.7) interest on, and any Additional Amounts with respect to
such Security or payment of such Coupon, as the case may be, on the
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respective Stated Maturity or Maturities therefor specified in such Security or
Coupon (or, in the case of redemption, on the Redemption Date or, in the case of
repayment at the option of such Holder if provided in or pursuant to this
Indenture, on the date such repayment is due) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to any Holder of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities of such series,
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(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of
the other Holders of Securities of such series not joining in such
action.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security of
such series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, or to retract (prior to the requisite percentage for such
waiver to become effective having been obtained) any such waiver previously
given, whether or not such Holders remain Holders after such record date;
provided, that such waiver shall be effected no later than the 90th day after
such record date.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14. Waiver of Usury, Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so)
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
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Section 5.15. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 5.15 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock or other securities in accordance with
its terms.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(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;
(2) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper
or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(3) in case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(4) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order
(in each case, other than delivery of any Security, together with any
Coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 3.3 which shall be sufficiently
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evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(5) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically prescribed)
may, in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(6) the Trustee may consult with counsel and the written
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 the absence of bad faith on its
part and in reliance thereon;
(7) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request or direction of any of the Holders of Securities of any
series or any Coupons appertaining thereto pursuant to this Indenture,
unless such Holders shall have offered to the Trustee such security or
indemnity as is reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(8) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, coupon or other paper or document, but
the Trustee, in its discretion, may but shall not be obligated to make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine, during
business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; and
(9) 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.
(10) the Trustee shall not be liable for any action taken or
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts, acted in bad
faith or engaged in willful misconduct;
(11) the Authenticating Agent, Paying Agent, and Security
Registrar shall have the same protections as the Trustee set forth
hereunder; and
(12) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with an Act of the Holders hereunder, and, to the extent not
so provided herein, with respect to any act requiring the
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Trustee to exercise its own discretion, 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 or any Securities, unless it shall be proved that,
in connection with any such action taken, suffered or omitted or any
such act, the Trustee was negligent, acted in bad faith or engaged in
willful misconduct.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 7.3(3), notice of such default hereunder actually known to a Responsible
Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any), or interest, if any, on, or Additional
Amounts or any sinking fund or purchase fund installment with respect to, any
Security of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the best interest of
the Holders of Securities and Coupons of such series; and provided, further,
that in the case of any default of the character specified in Section 5.1(5)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 60 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
Section 6.3. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 6.4. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
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Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company.
Section 6.6. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture or arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as are attributable to the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee and its agents, officers,
directors and employees for, and to hold them harmless against, any
loss, liability or expense incurred without negligence or bad faith on
their part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
To the extent permitted by law, any compensation or expense incurred by
the Trustee after a default specified in or pursuant to Section 5.1 is intended
to constitute an expense of administration under any then applicable bankruptcy
or insolvency law. "Trustee" for purposes of this Section 6.6 shall include any
predecessor Trustee but the negligence or bad faith of any Trustee shall not
affect the rights of any other Trustee under this Section 6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee
and shall apply with equal force and effect to the Trustee in its capacity as
Authenticating Agent, Paying Agent or Security Registrar.
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Section 6.7. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, that is eligible under Section
310(a)(1) of the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of its 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. 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 6.8. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 6.9.
(2) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.9 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and the
Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to Securities of any series after written request therefor by
the Company or any Holder of a Security of such series who has been a
bona fide Holder of a Security of such series for at least six months,
or
(b) the Trustee shall cease to be eligible under Section 6.7
and shall fail to resign after written request therefor by the Company
or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section
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315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona
fide Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of such series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.9. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.9, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 6.9, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
(7) In no event shall any retiring Trustee be liable for the acts or
omissions of any successor Trustee hereunder.
Section 6.9. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties hereunder of the retiring Trustee; but, on the request
of the Company or such
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successor Trustee, such retiring Trustee, upon payment of its charges, shall
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and, subject to Section 10.3,
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 6.6.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or such
successor Trustee, such retiring Trustee, upon payment of its charges with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates and subject to Section 10.3 shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, subject to its claim,
if any, provided for in Section 6.6.
(3) Upon request of any Person appointed hereunder as a 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 (1) or (2) of this Section, as the
case may be.
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(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 6.10. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 6.11. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent must be acceptable to the Company and, except
as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.6.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By ______________________________________
as Authenticating Agent
By ______________________________________
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need
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not be accompanied by or contained in an Officers' Certificate by the Company),
shall appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series
not later than May 15 and November 15 of the year or upon such other
dates as are set forth in or pursuant to the Board Resolution or
indenture supplemental hereto authorizing such series, a list, in each
case in such form as the Trustee may reasonably require, of the names
and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the 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 so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 7.2. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
Section 7.3. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with the first
May 15 following the first issuance of Securities pursuant to Section 3.1, if
required by Section 313(a) or 313(b) of the Trust Indenture Act, the Trustee
shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
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(2) The Trustee shall transmit the reports required by Section 313(a)
of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
Section 7.4. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(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 shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the 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 Holders within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute notice of any information contained therein or determinable
from information contained herein, including the Company's compliance with any
of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
ARTICLE 8
CONSOLIDATION, AMALGAMATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate or amalgamate with or merge into any
other Person (whether or not affiliated
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with the Company), or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any other Person (whether or not
affiliated with the Company), and the Company shall not permit any other Person
(whether or not affiliated with the Company) to consolidate or amalgamate with
or merge into the Company or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to the Company; unless:
(1) in case the Company shall consolidate or amalgamate with or merge
into another Person or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person, the Person formed by
such consolidation or amalgamation 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 as an entirety or substantially as an entirety shall
be a Corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall expressly
assume, by an indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed by the successor Person and delivered to
the Trustee the due and punctual payment of the principal of, any premium and
interest on and any Additional Amounts with respect to all the Securities and
the performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Company to be performed or observed and shall
provide for conversion or exchange rights in accordance with the provisions of
the Securities of any series that are convertible or exchangeable into Common
Stock or other securities;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default or event which,
after notice or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, amalgamation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
Section 8.2. Successor Person Substituted for Company.
Upon any consolidation or amalgamation by the Company with or merger of
the Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 8.1, the successor Person formed by such
consolidation or amalgamation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein; and thereafter, except in the case of a lease, the predecessor Person
shall be released from all obligations and covenants under this Indenture, the
Securities and the Coupons.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power herein
conferred upon the Company; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of, any premium or
interest on or any Additional Amounts with respect to Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such action shall not adversely affect the
interests of the Holders of Outstanding Securities of any series or any Coupons
appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 2.1 and 3.1; or
(5) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 6.9;
or
(6) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not adversely affect the interests of the
Holders of Securities of any series then Outstanding or any Coupons appertaining
thereto in any material respect; or
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental indenture); or
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(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided that
any such action shall not adversely affect the interests of any Holder of an
Outstanding Security of such series and any Coupons appertaining thereto or any
other Outstanding Security or Coupon in any material respect; or
(10) to secure the Securities pursuant to Section 10.5 or otherwise; or
(11) to make provisions with respect to conversion or exchange rights
of Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities then
Outstanding.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company's Board
Resolution) and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture or of the Securities of such series; provided, however,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Company to pay Additional Amounts
pursuant to Section 10.4 (except as contemplated by Section 8.1(1) and permitted
by Section 9.1(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2 or the amount
thereof provable in bankruptcy pursuant to Section 5.4, change the redemption
provisions or adversely affect the right of repayment at the option of any
Holder as contemplated by Article Thirteen, or change the Place of Payment,
Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption Date
or, in the case of repayment at the option of the Holder, on or after the date
for repayment), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this
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Indenture or certain defaults hereunder and their consequences) provided for in
this Indenture, or reduce the requirements of Section 15.4 for quorum or voting,
or
(3) modify any of the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to Holders of Securities, or
(4) modify any of the provisions of this Section, Section 5.13 or
Section 10.7, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, or
(5) make any change that adversely affects the right to convert or
exchange any Security into or for Common Stock or other securities in accordance
with its terms.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.3. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and an
Officers' Certificate stating that all conditions precedent to the execution of
such supplemental indenture have been fulfilled. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 9.5. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a
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notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 9.6. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.7. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 9.2, the Company shall transmit to
the Holders of Outstanding Securities of any series affected thereby a notice
setting forth the substance of such supplemental indenture.
Section 9.8. Effect on Senior Indebtedness.
No supplemental indenture shall directly or indirectly modify or
eliminate the provisions of Article 16 in any manner which might terminate or
impair the subordination of the Securities to Senior Indebtedness without the
prior written consent of the holders of the Senior Indebtedness.
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
Section 10.2. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to
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or upon the Company in respect of the Securities of such series relating thereto
and this Indenture may be served. If Securities of a series are issuable as
Bearer Securities, the Company shall maintain, subject to any laws or
regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company shall maintain a
Paying Agent in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The 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, except that Bearer Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment at the place specified for the purpose with respect to such Securities
as provided in or pursuant to this Indenture, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
of Securities Minneapolis, Minnesota, and initially appoints the office of the
Trustee at Norwest Bank Colorado, N.A., Corporate Trust Operations, Sixth
Street and Marquette Avenue, Minneapolis, Minnesota 55479-0113 for such purpose.
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Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
Section 10.3. Money for 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 Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a sum (in the currency
or currencies, currency unit or units or composite currency or currencies
described in the preceding paragraph) sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any payment of
principal, any premium or interest on or any Additional Amounts with respect to
the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The 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,
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such sums to be held by the Trustee upon the same terms 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 sums.
Except as otherwise provided herein or pursuant hereto, 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, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities of such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal and any
premium or interest or Additional Amounts shall have become due and payable, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding the payment of Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officers' Certificate instructing the Trustee and
such
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Paying Agent or Paying Agents whether such payment of principal of and premium,
if any, or interest on the Securities of such series shall be made to Holders of
Securities of such series or the Coupons appertaining thereto who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of such series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities or Coupons, and the Company agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
Section 10.5. Limitation on Liens.
The Company agrees that it will not, and will not permit any Restricted
Subsidiary to, create, incur, issue, assume or guarantee any notes, bonds,
debentures or other similar evidence of indebtedness for money borrowed
("Debt"), secured by a Mortgage upon any Operating Property, or upon shares of
capital stock or Debt issued by any Restricted Subsidiary and owned by the
Company or any Restricted Subsidiary, whether owned at the date of this
Indenture or hereafter acquired, without effectively providing concurrently that
the Outstanding Securities hereunder (together with, if the Company shall so
determine, any other Debt of the Company or such Restricted Subsidiary then
existing or thereafter created which is not subordinate to the Securities) shall
be secured equally and ratably with or, at the option of the Company, prior to
such Debt so long as such Debt shall be so secured, unless, at the time of such
creation, incurrence, issuance, assumption or guarantee, after giving effect
thereto and to the retirement of any Debt which is concurrently being retired,
the aggregate amount of all such Debt secured by Mortgages which would otherwise
be subject to such restrictions (other than any Debt secured by Mortgages
permitted in Clauses (1) through (7) of this Section 10.5 would not exceed the
greater of (i) 15% of Consolidated Net Assets and (ii) $150,000,000; provided,
however, that this Section shall not apply to, and there shall be excluded from
Debt in any computation under this Section, Debt secured by:
(1) Mortgages on property existing at the time of the acquisition
thereof;
(2) Mortgages on property of a Corporation existing at the time such
Corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of such Corporation (or a division thereof) as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary, provided
that any such Mortgage does not extend to any property owned by the Company or
Restricted Subsidiary immediately prior to such merger, consolidation, sale,
lease or disposition;
(3) Mortgages on property of a corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(4) Mortgages in favor of the Company or a Restricted Subsidiary;
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(5) Mortgages to secure all or part of the cost of acquisition,
construction, development or improvement of the underlying property, or to
secure Debt incurred to provide funds for any such purpose, provided that the
commitment of the creditor to extend the credit secured by any such Mortgage
shall have been obtained not later than 365 days after the later of (A) the
completion of the acquisition, construction, development or improvement of such
property or (B) the placing in operation of such property;
(6) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
thereof, to secure partial, progress, advance or other payments; and
(7) Mortgages existing on the date of this Indenture or any extension,
renewal, replacement or refunding of any Debt secured by a Mortgage existing on
the date of this Indenture or referred to in clauses (1) to (3) or (5) of this
Section 10.5, provided that the principal amount of Debt secured thereby and not
otherwise authorized by clauses (1) to (3) or (5) shall not exceed the principal
amount of Debt, plus any premium or fee payable in connection with any such
extension, renewal, replacement or refunding, so secured at the time of such
extension, renewal, replacement or refunding.
Section 10.6. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and their respective rights (charter and
statutory) and franchises; provided, however, that the foregoing shall not
obligate the Company or any Subsidiary to preserve any such right or franchise
if the Company or any Subsidiary shall determine that the preservation thereof
is no longer desirable in the conduct of its business or the business of such
Subsidiary and that the loss thereof is not disadvantageous in any material
respect to any Holder.
Section 10.7. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.5 or 10.6 with respect to
the Securities of any series if before the time for such compliance the Holders
of at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
Section 10.8. Company Statement as to Compliance; Notice of Certain
Defaults.
(1) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers'
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Certificate) signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, stating that
(a) a review of the activities of the Company during such year
and of its performance under this Indenture has been made under his or
her supervision, and
(b) to the best of his or her knowledge, based on such review,
(a) the Company has complied with all the conditions and covenants
imposed on it under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such condition or
covenant, specifying each such default known to him or her and the
nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
(2) The Company shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any Event of Default or any event
which after notice or lapse of time or both would become an Event of Default
pursuant to clause (4) of Section 5.1.
(3) The Trustee shall have no duty to monitor the Company's compliance
with the covenants contained in this Article 10 other than as specifically set
forth in this Section 10.8.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of (a) less than all of the Securities of any series or (b) all
of the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee
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from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions of the principal
amount of Registered Securities of such series; provided, however, that no such
partial redemption shall reduce the portion of the principal amount of a
Registered Security of such series not redeemed to less than the minimum
denomination for a Security of such series established herein or pursuant
hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted into Common Stock or exchanged for other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted or exchanged during a selection of Securities to be redeemed
shall be treated by the Trustee as Outstanding for the purpose of such
selection.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
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(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will receive,
without charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due
and payable upon each such Security or portion thereof to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities, together (in the case of
Bearer Securities) with all Coupons appertaining thereto, if any, maturing after
the Redemption Date, are to be surrendered for payment of the Redemption Price
and any accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by all
Coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing Coupon or Coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and no
Registered Securities of such series are to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 3.5 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible into
Common Stock or exchangeable for other securities, the conversion or exchange
price or rate, the date or dates on which the right to convert or exchange the
principal of the Securities of such series to be redeemed will commence or
terminate and the place or places where such Securities may be surrendered for
conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers
of such Securities, if any (or any other numbers used by a Depositary to
identify such Securities).
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 11.4, with the Trustee or with a
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Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.3) an amount of money in the
applicable Currency sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date, unless otherwise
specified pursuant to Section 3.1 or in the Securities of such series) any
accrued interest on and Additional Amounts with respect thereto, all such
Securities or portions thereof which are to be redeemed on that date.
Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 10.2),
and provided, further, that, except as otherwise specified in or pursuant to
this Indenture or the Registered Securities of such series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 10.2.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
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Section 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company 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
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depositary
or other Depositary for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of
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such Securities, provided that such series of Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If, as a result of the delivery or
credit of Securities of any series in lieu of cash payments pursuant to this
Section 12.2, the principal amount of Securities of such series to be redeemed
in order to satisfy the remaining sinking fund payment shall be less than
$100,000, the Trustee need not call Securities of such series for redemption,
except upon Company Request, and such cash payment shall be held by the Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall at the request of
the Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested to be
released to the Company.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the
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contrary contained in this Section 13.1, in connection with any repayment of
Securities, the Company may arrange for the purchase of any Securities by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Holders of such Securities on or before the
close of business on the repayment date an amount not less than the repayment
price payable by the Company on repayment of such Securities, and the obligation
of the Company to pay the repayment price of such Securities shall be satisfied
and discharged to the extent such payment is so paid by such purchasers.
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 15.1, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such
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meeting, shall be given, in the manner provided in Section 1.6, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 15.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request (whichever shall be required pursuant to
Section 1.6) or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or, if Securities of
such series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in clause (1) of this Section.
Section 15.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding
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Securities of that series; provided, however, that, except as limited by the
proviso to Section 9.2, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other Act which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 15.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be proved in the manner specified in Section 1.4
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.4 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 15.2(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.2 at which a quorum is present may be adjourned from time
to time by Persons entitled to
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vote a majority in principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned without
further notice.
Section 15.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE 16
SUBORDINATION OF SECURITIES
Section 16.1. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Securities issued
hereunder and under any supplemental indenture or by any resolutions by the
Board of Directors ("Additional Provisions") by such Holder's acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article Sixteen; and each holder of a Security, whether
upon original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Securities issued hereunder and under any Additional Provisions
shall, to the extent and in the manner hereinafter set forth, be subordinate in
right of payment to the prior payment in full of all Senior Indebtedness of the
Company, whether outstanding at the date of this Indenture or thereafter
incurred.
No provision of this Article Sixteen shall prevent the occurrence of
any default or Event of Default hereunder.
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Section 16.2. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company, as the case may be, or in the event that the
maturity of any Senior Indebtedness of the Company, as the case may be, has been
accelerated because of a default, then, in either case, no payment shall be made
by the Company with respect to the principal (including, redemption and sinking
fund payments) of, or premium, if any, or interest on the Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or the Holders when such payment is prohibited by the
preceding paragraph of this Section 16.2, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
Section 16.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company on
account of the principal (and premium, if any) or interest on the Securities;
and upon any such dissolution or winding-up or liquidation or reorganization,
and payment by the Company, or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders or
the Trustee would be entitled to receive from the Company, except for the
provisions of this Article Sixteen, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
the Indenture if received by them or it, directly to the holders of Senior
Indebtedness of the Company (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, as calculated by
the Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the
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foregoing, shall be received by the Trustee before all Senior Indebtedness of
the Company is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, and their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness of the Company, as the case may be, remaining
unpaid to the extent necessary to pay such Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article Sixteen, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Sixteen with
respect to the Securities to the payment of all Senior Indebtedness of the
Company, as the case may be, that may at the time be outstanding, provided that
(i) such Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Eight of this
Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 16.3 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eight of this Indenture. Nothing in
Section 16.2 or in this Section 16.3 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.7 of this Indenture.
Section 16.4. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the Holders shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company, as the case may be, applicable to
such Senior Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Holders or the
Trustee would be entitled except for the provisions of this Article Sixteen, and
no payment over pursuant to the provisions of this Article Sixteen to or for the
benefit of the holders of such Senior Indebtedness by Holders or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness of the Company, and the Holders of the Securities, be deemed to be
a payment by the Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article Sixteen are and are intended
solely for the purposes of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of such Senior Indebtedness on the
other hand.
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Nothing contained in this Article Sixteen or elsewhere in this
Indenture, any Additional Provisions or in the Securities is intended to or
shall impair, as between the Company, its creditors other than the holders of
Senior Indebtedness of the Company, and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company, as the case may be,
other than the holders of Senior Indebtedness of the Company, as the case may
be, nor shall anything herein or therein prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Sixteen of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, as the case may be, received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee, subject to the provisions of Article Six
of this Indenture, and the Holders shall be entitled to conclusively rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders, for the purposes of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Sixteen.
Section 16.5. Trustee to Effectuate Subordination.
Each Holder by such Holder's acceptance thereof authorizes and directs
the Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Sixteen and
appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes. Each Holder acknowledges that the initial Trustee is acting as
Trustee for Senior Indebtedness of the Company.
Section 16.6. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Sixteen. Notwithstanding the
provisions of this Article Sixteen or any other provision of this Indenture or
any Additional Provisions, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article Sixteen, unless and until a Responsible Officer of
the Trustee shall have received written notice thereof from the Company or a
holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Article Six of this Indenture, shall be entitled in all respects
to assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 16.6 at least two
Business
80
<PAGE> 89
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Debenture), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purposes
for which they were received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article Six of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company, as the case may be (or a trustee on behalf of such
holder), to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article Sixteen, 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, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Sixteen, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 16.7. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Sixteen in respect of any Senior Indebtedness
at any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture or any Additional Provisions shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Sixteen, and no
implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or any Additional Provisions
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of such Senior Indebtedness and, subject to the provisions of
Article Six of this Indenture, the Trustee shall not be liable to any holder of
such Senior Indebtedness if its shall pay over or deliver to Holders, the
Company or any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article Sixteen or otherwise.
Nothing in this Article Sixteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.
Section 16.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness of
the Company 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, as the case may be, or by any act or
81
<PAGE> 90
failure to act, in good faith, by any such holder, or by any noncompliance by
the Company, as the case may be, with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof that any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Company may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Sixteen or the obligations hereunder of
the holders of the Securities to the holders of such Senior Indebtedness, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, such Senior Indebtedness,
or otherwise amend or supplement in any manner such Senior Indebtedness or any
instrument evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company, as the case may be, and any other Person.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] NORDSTROM, INC.
Attest:
By _________________________________________
Name:
Title:
[SEAL] NORWEST BANK COLORADO, NATIONAL ASSOCIATION
as Trustee
Attest:
By _________________________________________
Name:
Title:
82
<PAGE> 91
STATE OF WASHINGTON )
) ss.
CITY AND COUNTY OF KING )
The foregoing instrument was acknowledged before me,
_____________________, this _____ day of January, 1999 by
_________________________, as ____________________ of Nordstrom, Inc., a
Washington corporation.
Witness my hand and official seal.
_________________________________________
Notary Public for the State of Washington
My Commission expires:
_________________________________
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me,
_____________________, this _____ day of January, 1999 by
____________________________, as ____________________ of Norwest Bank Colorado,
National Association, a national banking association.
Witness my hand and official seal.
_________________________________________
Notary Public for the State of Washington
My Commission expires:
_________________________________
83
<PAGE> 1
EXHIBIT 4.5
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS
DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. THIS GLOBAL SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, 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.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. ____________________ $______________
CUSIP No. ______________
NORDSTROM, INC.
___% Senior Note due _________, ____
Nordstrom, Inc., a Washington corporation (hereinafter called the
"Company," which term includes any successor corporation under the Indenture
referred to below), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of __________________________ Dollars
($________) on ____________, ____ and to pay interest thereon from ________,
____ or from the most recent date to which interest has been paid or duly
provided for, semiannually on ________ and ________ in each year (each, an
"Interest Payment Date"), commencing ___________, ____, at the rate of ________
percent per annum, until the principal hereof is paid or duly made available for
payment. Interest on this Note shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months. The interest so payable and punctually
paid or duly provided for on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ________ or ________ (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to
<PAGE> 2
be payable to the registered Holder hereof on the relevant Regular Record Date
by virtue of having been such Holder, and may be paid to the Person in whose
name this Note (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Company, notice whereof shall be given to the
Holders of Notes of this series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed and upon such notice as may be required by such exchange, all as
more fully provided in such Indenture.
Payment of the principal of and the interest on this Note will be made at the
office of the Trustee (as defined below) at Norwest Bank Minnesota, N.A.,
Corporate Trust Operations, Sixth Street and Marquette Avenue, Minneapolis,
Minnesota 55479-0113, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that, at the option of the Company, interest may be
paid by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register; provided, further, that payment
to DTC or any successor depositary may be made by wire transfer to the account
designated by DTC or such successor depositary in writing.
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes") issued and to be issued in one or more series under
an Indenture dated as of January ___, 1999 (herein called, together with all
indentures supplemental thereto, the "Indenture") between the Company and
Norwest Bank Colorado, National Association as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes,
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face hereof, limited
(subject to exceptions provided in the Indenture) to the aggregate principal
amount specified in the Officers' Certificate dated ________, ____ establishing
the terms of the Notes pursuant to the Indenture.
The Notes are not redeemable prior to maturity and are not subject to
any sinking fund.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of any series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
2
<PAGE> 3
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Notes
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note,
at the times, place and rate, and in the coin or currency, herein and in the
Indenture prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and in this Note, the transfer of this Note may be registered on
the Security Register upon surrender of this Note for registration of transfer
at the office or agency of the Company maintained for the purpose in any place
where the principal of and interest on this Note are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Notes of this
series and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. Subject to certain
limitations set forth in the Indenture and in this Note, the Notes are
exchangeable for a like aggregate principal amount of Notes of this series in
different authorized denominations, as requested by the Holders surrendering the
same.
No service charge by the Company shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith,
other than in certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be
discharged from its obligations with respect to the Notes (subject to certain
exceptions) or (ii) the Company may be released from its obligation under
specified covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations
sufficient to pay and discharge the entire indebtedness on all Notes of this
series, and satisfies certain other conditions, all as more fully provided in
the Indenture.
This Note shall be governed by and construed in accordance with the laws
of the State of New York.
3
<PAGE> 4
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee under the Indenture by the manual signature of one of
its authorized signatories, this Note shall not be entitled to any benefits
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _________, ____ NORDSTROM, INC.
[Seal]
Attest:_______________________________ By ________________________________
Name: Karen Purpur Name: Michael A. Stein
Title: Corporate Secretary Title: Vice President and Chief
Financial Officer
4
<PAGE> 5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
NORWEST BANK COLORADO, NATIONAL
ASSOCIATION, as Trustee
By _____________________________________
Authorized Signatory
5
<PAGE> 6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in UNIF GIFT MIN Custodian
ACT - common _________ _______
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as ___________________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
____________________________________________
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________________________________
to transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated:____________________________.
Notice: The signature to this assignment must correspond
with the name as it appears upon the face of the
within Note in every particular, without
alteration or enlargement or any change whatever.
6
<PAGE> 1
Exhibit 5.1
January 13, 1999
Michael A. Stein
Executive Vice President and
Chief Financial Officer
Nordstrom, Inc.
1617 Sixth Avenue, 6th Floor
Seattle, WA 98101
Re: Legality of Securities
Dear Mr. Stein:
At the request of Nordstrom, Inc. (the "Company"), we have examined the
Registration Statement on Form S-3 filed by the Company with the Securities and
Exchange Commission (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended (the "Securities Act")
of $600,000,000 of Securities of the Company. As counsel to the Company, we have
examined the proceedings relating to the issuance and sale of Securities to be
issued and sold by the Company. Capitalized terms used in this letter and not
specifically defined have the meanings set forth in the Prospectus and
Prospectus Supplement contained in the Registration Statement.
The Debt Securities specified as Senior Debt Securities in the
applicable Prospectus Supplement will be issued under an Indenture, dated
January 13, 1999 (such Indenture, as amended or supplemented from time to time,
the "Senior Indenture"), between the Company and Norwest Bank Colorado, National
Association, as Trustee. The Debt Securities specified as Subordinated Debt
Securities in the applicable Prospectus Supplement will be issued under an
Indenture dated January 13, 1999 (such Indenture, as amended or supplemented
from time to time, the "Subordinated Indenture"), between the Company and
Norwest Bank of Colorado, National Association, as Trustee. Each series of Debt
Warrants will be issued under a warrant
<PAGE> 2
Michael A. Stein
January 13, 1999
Page 2
agreement (each, a "Debt Warrant Agreement"), to be filed prior to the issuance
of such Debt Warrants in an amendment to the Registration Statement or
incorporated by reference into the Registration Statement pursuant to a Current
Report on Form 8-K of the Company, to be executed by the Company and a warrant
agent or agents to be named by the Company prior to the offering of any Debt
Warrants of such series. Each series of Common Stock Warrants will be issued
under a warrant agreement (each, a "Stock Warrant Agreement"), to be filed prior
to the issuance of such Common Stock Warrants in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K of the Company, to be
executed by the Company and a warrant agent or agents to be named by the Company
prior to the offering of any Stock Warrants of such series. Each series of
Currency Warrants will be issued under a warrant agreement (each, a "Currency
Warrant Agreement"), to be filed prior to the issuance of such Currency Warrants
in an amendment to the Registration Statement or incorporated by reference into
the Registration Statement pursuant to a Current Report on Form 8-K of the
Company, to be executed by the Company and a warrant agent or agents to be named
by the Company prior to the offering of any Currency Warrants of such series.
The Registration Statement provides that the Company may sell the
Securities registered thereby (i) through underwriters or dealers, (ii) directly
to one or more other purchasers, (iii) through agents or (iv) to both investors
and/or dealers through a specific bidding or auction process or otherwise. The
applicable Prospectus Supplement with respect to the Securities offered will set
forth the terms of the offering of such Securities, including the name or names
of any underwriters, dealers or agents, the purchase price of such Securities
and the proceeds to the Company from such sale, any underwriting discounts and
other items constituting underwriters' compensation, any initial public offering
price and any discounts, commissions or concessions allowed or reallowed or paid
to dealers, and any bidding or auction process. If underwriters are used in an
offering of Securities registered by the Registration Statement, the
Registration Statement anticipates that the Company will sell such Securities
pursuant to the terms of an underwriting agreement to be executed between the
Company and underwriters that will be identified in the applicable Prospectus
Supplement. We have for purposes of this letter reviewed the preliminary form of
the underwriting agreement initially filed as an exhibit to the Registration
Statement and we have assumed for purposes of this letter that the terms of the
Underwriting Agreement will fall within the scope of the authorization adopted
by the Company's Board of Directors and will receive the approvals required by
that Board authorization. The term "Underwriting Agreement" is used in this
letter to mean an underwriting agreement in the form in which it will be
actually executed by the Company and the underwriters with respect to a
particular underwritten offering of
<PAGE> 3
Michael A. Stein
January 13, 1999
Page 3
Securities registered by the Registration Statement. We have also assumed for
purposes of this letter that the terms of any other agreement providing for the
sale of Securities registered by the Registration Statement (other than by means
of an underwritten offering), including a distribution agreement to be filed
prior to a particular offering of Securities registered by the Registration
Statement in an amendment to the Registration Statement or incorporated by
reference into the Registration Statement pursuant to a Current Report on Form
8-K of the Company, to be executed by the Company and an appropriate party or
parties that will be identified in the applicable Prospectus Supplement, will
fall within the scope of the authorization adopted by the Company's Board of
Directors and will receive the approvals required by that Board authorization.
The term "Other Agreement" is used in this letter to mean an agreement providing
for the sale of Securities registered by the Registration Statement (other than
by means of an underwritten offering) in the form in which it will be actually
executed by the Company and the appropriate party or parties with respect to a
particular offering or offerings of Securities registered by the Registration
Statement. The term "Agreement" is used in this letter to mean either an
Underwriting Agreement or an Other Agreement. The terms "Registered Senior Debt
Securities," "Registered Subordinated Debt Securities," "Registered Debt
Warrants," "Registered Common Stock," "Registered Common Stock Warrants" and
"Registered Currency Warrants" are used in this letter to mean, respectively,
the Senior Debt Securities, the Subordinated Debt Securities, the Debt Warrants,
the Common Stock, the Stock Warrants and the Currency Warrants that are
registered under the Registration Statement as initially filed and are sold by
the Company under an Agreement.
For purposes of this letter, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary for the
purpose of this opinion, including (i) the corporate and organizational
documents of the Company, (ii) minutes and records of the corporate proceedings
of the Company with respect to the issuance of the Securities and (iii) the
Registration Statement and the exhibits thereto.
For purposes of this letter, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals
submitted to us as copies. We have also assumed the genuineness of the
signatures of persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto other than the Company, and the due authorization, execution and
delivery of all documents by the parties thereto other than the Company. As to
any facts material to the opinions expressed herein which we have not
independently established or verified,
<PAGE> 4
Michael A. Stein
January 13, 1999
Page 4
we have relied upon statements and representations of officers and other
representatives of the Company and others.
Subject to the assumptions, qualifications and limitations identified in
this letter, we advise you that in our opinion:
(1) Registered Senior Debt Securities of each series, when issued, will
be binding obligations of the Company, enforceable against the Company in
accordance with their terms, when, as and if (i) the Registration Statement
shall have become effective pursuant to the provisions of the Act, (ii)
appropriate corporate action shall have been taken by the Company to authorize
(a) the form, terms, execution and delivery of any necessary supplemental
indenture or amendment to the Senior Indenture (and such supplemental indenture
or amendment shall have been duly executed and delivered by the Company and the
trustee thereunder) and (b) the form and terms of such series of Registered
Senior Debt Securities, (iii) such series of Registered Senior Debt Securities
shall have been issued in the form and containing the terms described in the
Registration Statement, any applicable Prospectus Supplements, the Senior
Indenture and such corporate action, (iv) a Prospectus Supplement or Prospectus
Supplements with respect to such series of Registered Senior Debt Securities
shall have been filed (or transmitted for filing) with the Securities and
Exchange Commission (the "Commission") pursuant to Rule 424(b) of the Act and
any exhibits necessary under the rules and regulations of the Commission shall
have been filed with the Commission in an amendment to the Registration
Statement or incorporated by reference into the Registration Statement pursuant
to a Current Report on Form 8-K of the Company filed with the Commission, (v)
any legally required consents, approvals, authorizations and other orders of the
Commission and any other regulatory authorities shall have been obtained and
(vi) Registered Senior Debt Securities of such series shall have been duly
executed and authenticated as provided in the Senior Indenture and duly
delivered to the purchasers thereof against payment of the agreed consideration
therefor in accordance with the applicable Agreement.
(2) Registered Subordinated Debt Securities of each series, when issued,
will be binding obligations of the Company, enforceable against the Company in
accordance with their terms, when, as and if (i) the Registration Statement
shall have become effective pursuant to the provisions of the Act, (ii)
appropriate corporate action shall have been taken by the Company to authorize
(a) the form, terms, execution and delivery of the Subordinated Indenture and
any necessary supplemental indenture or amendment to the Subordinated Indenture
(and the Subordinated Indenture and any such supplemental indenture or amendment
shall have been duly executed and delivered by the Company
<PAGE> 5
Michael A. Stein
January 13, 1999
Page 5
and the trustee thereunder) and (b) the form and terms of such series of
Registered Subordinated Debt Securities, (iii) such series of Registered
Subordinated Debt Securities shall have been issued in the form and containing
the terms described in the Registration Statement, any applicable Prospectus
Supplements, the Subordinated Indenture and such corporate action, (iv) a
Prospectus Supplement or Prospectus Supplements with respect to such series of
Registered Subordinated Debt Securities shall have been filed (or transmitted
for filing) with the Commission pursuant to Rule 424(b) of the Act and any
exhibits necessary under the rules and regulations of the Commission, shall have
been filed with the Commission in an amendment to the Registration Statement or
incorporated by reference into the Registration Statement pursuant to a Current
Report on Form 8-K of the Company filed with the Commission, (v) any legally
required consents, approvals, authorizations and other orders of the Commission
and any other regulatory authorities shall have been obtained and (vi)
Registered Subordinated Debt Securities of such series shall have been duly
executed and authenticated as provided in the Subordinated Indenture and duly
delivered to the purchasers thereof against payment of the agreed consideration
therefor in accordance with the applicable agreement.
(3) Registered Debt Warrants of each series, when issued, will be
binding obligations of the Company, enforceable against the Company in
accordance with their terms when, as and if (i) the Registration Statement shall
have become effective pursuant to the provisions of the Act, (ii) appropriate
corporate action shall have been taken by the Company to authorize the form,
terms, execution and delivery of a Debt Warrant Agreement for such series of
Registered Debt Warrants, including a form of certificate evidencing such series
of Registered Debt Warrants (and such Debt Warrant Agreement shall have been
duly executed and delivered by the Company and the warrant agent or agents
thereunder), (iii) a Prospectus Supplement or Prospectus Supplements with
respect to such series of Registered Debt Warrants shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule 424(b) of the Act
and any exhibits necessary under the rules and regulations of the Commission,
including such Debt Warrant Agreement, shall have been filed with the Commission
in an amendment to the Registration Statement or incorporated by reference into
the Registration Statement pursuant to a Current Report on Form 8-K of the
Company filed with the Commission, (iv) any legally required consents,
approvals, authorizations and other orders of the Commission and any other
regulatory authorities shall have been obtained and (v) Registered Debt Warrants
of such series are duly executed, attested and issued by duly authorized
officers of the Company, countersigned by the applicable warrant agent and
delivered to the purchasers thereof against payment of the agreed consideration
<PAGE> 6
Michael A. Stein
January 13, 1999
Page 6
therefor in the manner provided for in the Registration Statement, any
applicable Prospectus Supplements, such Debt Warrant Agreement, the applicable
Agreement and such corporate action.
(4) Shares of Registered Common Stock will be validly issued, fully paid
and nonassessable when, as and if (i) the Registration Statement shall have
become effective pursuant to the provisions of the Act, (ii) appropriate
corporate action shall have been taken to authorize the issuance and sale of
such Registered Common Stock, (iii) a Prospectus Supplement or Prospectus
Supplements with respect to the shares of Registered Common Stock shall have
been filed (or transmitted for filing) with the Commission pursuant to Rule
424(b) of the Act and any exhibits necessary under the rules and regulations of
the Commission shall have been filed with the Commission in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K of the Company filed with the
Commission, (iv) any legally required consents, approvals, authorizations and
other orders of the Commission appropriate certificates representing the shares
of the Registered Common Stock are duly executed, countersigned by the Company's
transfer agent/registrar, registered and delivered against payment of the agreed
consideration therefor in accordance with the applicable Agreement.
(5) Registered Common Stock Warrants of each series, when issued, will
be binding obligations of the Company, enforceable against the Company in
accordance with their terms when, as and if (i) the Registration Statement shall
have become effective pursuant to the provisions of the Act, (ii) appropriate
corporate action shall have been taken by the Company to authorize the form,
terms, execution and delivery of a Common Stock Warrant Agreement for such
series of Registered Common Stock Warrants, including a form of certificate
evidencing such series of Registered Common Stock Warrants (and such Common
Stock Warrant Agreement shall have been duly executed and delivered by the
Company and the warrant agent or agents thereunder), (iii) a Prospectus
Supplement or Prospectus Supplements with respect to such series of Registered
Common Stock Warrants shall have been filed (or transmitted for filing) with the
Commission pursuant to Rule 424(b) of the Act and any exhibits necessary under
the rules and regulations of the Commission and any exhibits necessary under the
rules and regulations of the Commission, including such Common Stock Warrant
Agreement, shall have been filed with the Commission in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K of the Company filed with the
Commission, (iv) any legally required consents, approvals, authorizations and
other orders of the Commission and any other regulatory authorities shall have
been obtained and (v) Registered Common Stock Warrants of such series are duly
executed, attested and issued by duly
<PAGE> 7
Michael A. Stein
January 13, 1999
Page 7
authorized officers of the Company, countersigned by the applicable warrant
agent and delivered to the purchasers thereof against payment of the agreed
consideration therefor in the manner provided for in the Registration Statement,
any applicable Prospectus Supplements, such Stock Warrant Agreement, the
applicable Agreement and such corporate action.
(6) Registered Currency Warrants of each series, when issued, will be
binding obligations of the Company, enforceable against the Company in
accordance with their terms when, as and if (i) the Registration Statement shall
have become effective pursuant to the provisions of the Act, (ii) appropriate
corporate action shall have been taken by the Company to authorize the form,
terms, execution and delivery of a Currency Warrant Agreement for such series of
Registered Currency Warrants (and such Currency Warrant Agreement shall have
been duly executed and delivered by the Company and the warrant agent or agents
thereunder), (iii) a Prospectus Supplement or Prospectus Supplements with
respect to such series of Registered Currency Warrants shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule 424(b) of the Act
and any exhibits necessary under the rules and regulations of the Commission,
including such Currency Warrant Agreement, shall have been filed with the
Commission in an amendment to the Registration Statement or incorporated by
reference into the Registration Statement pursuant to a Current Report on Form
8-K of the Company filed with the Commission, (iv) any legally required
consents, approvals, authorizations and other orders of the Commission and any
other regulatory authorities shall have been obtained and (v) Registered
Currency Warrants of such series are duly executed, attested and issued by duly
authorized officers of the Company, countersigned by the applicable warrant
agent and delivered to the purchasers thereof against payment of the agreed
consideration therefor in the manner provided for in the Registration Statement,
any applicable Prospectus Supplements, such Currency Warrant Agreement, the
applicable Agreement and such corporate action.
Our opinions expressed above are subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law or judicially developed doctrine in
this are (such as substantive consolidation or equitable subordination)
affecting the enforcement of creditors' rights generally, (ii) general
principals of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), (iii) an implied covenant of good faith and
fair dealing, (iv) public policy considerations which may limit the rights of
parties to obtain certain remedies, (v) any requirement that a claim with
respect to any security denominated in other than U.S. dollars (or a judgment
denominated in other than U.S. dollars in respect of such claim) be converted
into U.S. dollars at a rate of exchange
<PAGE> 8
Michael A. Stein
January 13, 1999
Page 8
prevailing on a date determined in accordance with applicable law, (vi)
governmental authority to limit, delay or prohibit the making of payments
outside of the United States or in a foreign currency or currency unit and (vii)
any laws except the laws of the State of Washington. We advise you that issues
addressed by this letter may be governed in whole or in part by other laws, but
we express no opinion as to whether any relevant difference exists between the
laws upon which our opinions are based and any other laws which may actually
govern.
For purposes of rendering our opinions expressed above, we have assumed
that (i) the Registration Statement remains effective during the offer and sale
of the particular Securities, (ii) the terms of the (a) Senior Indenture,
(b) Subordinated Indenture, (c) any supplemental indenture to the Senior
Indenture or the Subordinated Indenture, (d) any Debt Warrant Agreement, (e) any
Common Stock Warrant Agreement, or (f) any Currency Warrant Agreement, each as
applicable to the particular Securities, are consistent with the description of
the terms of such indenture, agreement or certificate set forth in the
Registration Statement and in the Prospectus and (iii) at the time of the
issuance, sale and delivery of each such Security (x) the authorization of such
Security by the Company will not have been modified or rescinded and there will
not have occurred any change in law affecting the validity, legally binding
character or enforceability of such Security and (y) the issuance, sale and
delivery of such Security, the terms of such Security, the terms of any
Agreement, any supplemental indenture to the Senior Indenture or the
Subordinated Indenture, any Debt Warrant Agreement or any Currency Warrant
Agreement applicable to such Security and compliance by the Company with the
terms of such Security and the terms of any such agreement or indenture will not
violate any applicable law, any agreement or instrument then binding upon the
Company or any restriction imposed by any court or governmental body having
jurisdiction over the Company.
We do not find it necessary for the purposes of this opinion and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance of the Securities.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes.
<PAGE> 9
Michael A. Stein
January 13, 1999
Page 9
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the prospectus constituting a part thereof,
any amendments or supplements thereto, and the prospectus in the form first
filed with the Commission pursuant to Rule 424(b) of the rules and regulations
under the Securities Act.
Very truly yours,
LANE POWELL SPEARS LUBERSKY LLP
/s/ Lane Powell Spears Lubersky LLP
LJS\ESC:dsp
<PAGE> 1
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) _____
---------------
NORWEST BANK COLORADO, N.A.
(Exact name of trustee as specified in its charter)
NOT APPLICABLE 84-0187632
-------------------
(Jurisdiction of incorporation or (I.R.S. Employer
Organization if not a U.S. national Identification No.)
bank)
1740 BROADWAY
DENVER, COLORADO 80274-8693
(Address of principal executive office) (Zip Code)
NORWEST BANK COLORADO, N.A.
ATTN:: CORPORATE TRUST DEPARTMENT
1740 BROADWAY
DENVER, CO 80274-8693
303-863-6247
(Name, address and telephone number of agent for service)
---------------
NORDSTROM, INC.
(Exact name of obligor as specified in its charter)
WASHINGTON 91-0515058
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1617 SIXTH AVENUE, SUITE 500
SEATTLE, WA 98101-1742
(Address of principal executive office) (Zip Code)
---------------
<PAGE> 2
SENIOR DEBT SECURITIES AND SUBORDINATED DEBT SECURITIES OF NORDSTROM, INC.
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.
<TABLE>
<CAPTION>
Name Address
---- --------
<S> <C>
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of Denver Denver, Colorado
Federal Deposit Insurance Corporation Dallas, Texas
National Bank Examiners - Western District Denver, Colorado
</TABLE>
(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 such
affiliation.
None.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
(a) Furnish the following information as to each class of voting
securities of the trustee.
As of December 31, 1998
(within 31 days)
Col. A Col. B
Title of Class Amount Outstanding
Not Applicable
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
<PAGE> 3
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, furnish the following
information:
(a) Title of the securities outstanding under each such other indenture.
Nordstrom Inc., 6.95% Senior Debentures Due March 15, 2028.
Also, Senior Debt Securities of Nordstrom, Inc. and Subordinated
Debt Securities of Nordstrom, Inc. under the Senior Indenture and
Subordinated Indenture filed as Exhibits 4.3 and 4.4,
respectively, to Amendment No. 2 to Registration Statement No.
333-69281 of Nordstrom, Inc. (no securities are presently
outstanding under the Senior Indenture or the Subordinated
Indenture).
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1)
of the Act arises as a result of the trusteeship under any such
other indentures, including a statement as to how the indenture
securities will rank as compared with the securities under such
other indentures.
Not applicable, none of the issues is in default.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the
nature of each such connection.
Not applicable.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor:
As of December 31, 1998
(within 31 days)
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
- -------------- -------------- -------------- ----------------------
<S> <C> <C> <C>
Percentage of Voting
Securities Represented
Amount Owned by Amount Given
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Name of Owner Title of Class Beneficially In Col. C
- ------------- -------------- ------------ ---------------
<S> <C> <C> <C>
None
</TABLE>
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE UNDERWRITERS OR THEIR
OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter:
As of December 31, 1998
(within 31 days)
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
- ---------------- ---------------- ---------------- ----------------------
Percentage of Voting
Securities Represented
Amount Owned by Amount Given
Name of Owner Title of Class Beneficially in Col. C
- ---------------- ---------------- ---------------- ----------------------
<S> <C> <C> <C>
None
</TABLE>
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default
by the trustee:
As of December 31, 1998
(within 31 days)
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
- ---------------- ---------------- ---------------- ----------------------
Whether the Amount Owned Percentage of
Securities are Beneficially or Class
Voting or Held as Collateral Represented by
Title of Nonvoting Security for Amount Given
Class Securities Obligations in Default in Col. C
- ---------------- ---------------- ---------------- ----------------------
<S> <C> <C> <C>
None
</TABLE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
<PAGE> 5
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the
obligor, furnish the following information as to each class of
securities of such underwriter, any of which are so owned or held by
the trustee:
As of December 31, 1998
(within 31 days)
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
- ---------------- ----------------- --------------------- ----------------------
Amount Owned
Name of Beneficially or Held Percentage of Class
Issuer and as Collateral Security Securities Represented
Title Amount for Obligations in by Amount Given
of Class Outstanding Default by Trustee in Col. C
<S> <C> <C> <C>
None
- ---------------- ----------------- --------------------- ----------------------
</TABLE>
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral security for
obligations in default any voting securities of a person who, to the
knowledge of the trustee (1) owns 10 percent or more of the voting
securities of the obligor or (2) is an affiliate, other than a
subsidiary, of the obligor, furnish the following information as to
the voting securities of such person:
As of December 31, 1998
(within 31 days)
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
- ---------------- ----------------- --------------------- ----------------------
Amount Owned
Beneficially or Held Percentage of Class
Name of Issuer as Collateral Security Securities Represented
and Title Amount for Obligations in by Amount Given
Of Class Outstanding Default by Trustee in Col. C
- ---------------- ----------------- --------------------- ----------------------
<S> <C> <C> <C>
None
</TABLE>
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
If the Trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the
knowledge of the trustee, owns 50 percent or more
<PAGE> 6
of the voting securities of the obligor, furnish the following
information as to each class of securities of such person, any of
which are so owned or held by the trustee:
As of December 31, 1998
(within 31 days)
<TABLE>
<CAPTION>
Col. A Col. B Col. C Col. D
- ---------------- ----------------- ---------------------- ----------------------
Amount Owned
Beneficially or Held Percentage of Class
Name of as Collateral Security Securities Represented
Issuer and Amount for Obligations in by Amount Given
Title of Class Outstanding Default by Trustee in Col. C
- ---------------- ----------------- ---------------------- ----------------------
<S> <C> <C> <C>
None
</TABLE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
<TABLE>
<CAPTION>
Col. A Col. B Col. C
--------- --------- ---------
<S> <C> <C>
N/A N/A N/A
</TABLE>
ITEM 13. DEFAULTS BY THE OBLIGOR.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of any
such default.
None.
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding series
of securities under the indenture, state whether there has been
a default under any such indenture or series. identify the
indenture or series affected, and explain the nature of any
such default.
None.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable.
<PAGE> 7
ITEM 15. FOREIGN TRUSTEE.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility.
1. A copy of the articles of association of the trustee as now in
effect*
2. A copy of the authorization of the trustee to exercise corporate
trust powers*
3. A copy of the existing bylaws of the trustee, or instruments
corresponding thereto*
4. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
* EXHIBITS 1, 2 AND 3 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF NORWEST BANK COLORADO, N.A.
FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON AMENDMENT NO.2 TO FORM
S-4 OF ICG HOLDINGS, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
JUNE 5, 1997 (REGISTRATION NO. 333-24359).
<PAGE> 8
SIGNATURE
Pursuant to the requirements of the Trustee Indenture Act of 1939
the trustee, Norwest Bank Colorado, N.A., organized and existing under the laws
of the United States of America, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City and County of Denver, and State of Colorado on the 13th day of January,
1999.
NORWEST BANK COLORADO, N.A.
By: /s/ LEIGH M. LUTZ
----------------------
Leigh M. Lutz
Vice President
<PAGE> 9
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939, in connection with the issue of Senior Debt Securities and Subordinated
Debt Securities of Nordstrom, Inc. We hereby consent that reports of
examinations by Federal, State, Territorial, or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefore.
NORWEST BANK COLORADO, N.A.
By: /s/ LEIGH M. LUTZ
--------------------
Leigh M. Lutz
Vice President
Dated: January 13, 1999
<PAGE> 10
Exhibit 4
Legal Title of Bank: NORWEST BANK COLORADO, N.A. Call Date: 9/30/98 FFIEC031
Address: 1740 BROADWAY Page RI-1
City, State Zip: DENVER, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No. 03011
CONSOLIDATED REPORT OF INCOME
FOR THE PERIOD JANUARY 1, 1998-SEPTEMBER 30, 1998
ALL REPORT OF INCOME SCHEDULES ARE TO BE REPORTED ON A CALENDAR YEAR-TO-DATE
BASIS IN THOUSANDS OF DOLLARS.
SCHEDULE RI--INCOME STATEMENT
<TABLE>
<CAPTION>
I480
----
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income:
a. Interest and fee income on loans:
(1) In domestic offices:
(a) Loans secured by real estate.................................................. 4011 128,383 1.a.(1)(a)
(b) Loans to depository institutions.............................................. 4019 3,827 1.a.(1)(b)
(c) Loans to finance agricultural production and other loans to farmers........... 4024 6,141 1.a.(1)(c)
(d) Commercial and industrial loans............................................... 4012 51,509 1.a.(1)(d)
(e) Acceptances of other banks.................................................... 4026 11 1.a.(1)(e)
(f) Loans to individuals for household, family, and other personal expenditures:
(1) Credit cards and related plans............................................ 4054 5,940 1.a.(1)(f)(1)
(2) Other..................................................................... 4055 57,199 1.a.(1)(f)(2)
(g) Loans to foreign governments and official institutions........................ 4056 0 1.a.(1)(g)
(h) Obligations (other than securities and leases) of states and political
subdivisions in the U.S.:
(1) Taxable obligations....................................................... 4503 0 1.a.(1)(h)(1)
(2) Tax-exempt obligations.................................................... 4504 807 1.a.(1)(h)(2)
(i) All other loans in domestic offices........................................... 4058 2 1.a.(1)(i)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs..................... 4059 0 1.a.(2)
b. Income from lease financing receivables:
(1) Taxable leases.................................................................... 4505 0 1.b.(1)
(2) Tax-exempt leases................................................................. 4307 0 1.b.(2)
c. Interest income on balances due from depository institutions:(1)
(1) In domestic offices............................................................... 4105 29 1.c.(1)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs..................... 4106 27,250 1.c.(2)
d. Interest and dividend income on securities:
(1) U.S. Treasury securities and U.S. Government agency obligations................... 4027 123,283 1.d.(1)
(2) Securities issued by state and political subdivisions in the U.S.:
(a) Taxable securities............................................................ 4506 77 1.d.(2)(a)
(b) Tax-exempt securities......................................................... 4507 1,987 1.d.(2)(b)
(3) Other domestic debt securities.................................................... 3657 86 1.d.(3)
(4) Foreign debt securities........................................................... 3658 0 1.d.(4)
(5) Equity securities (including investments in mutual funds)......................... 3659 450 1.d.(5)
e. Interest income from trading assets................................................... 4069 1,975 1.e.
-------------------
</TABLE>
- --------------
(1) Includes interest income on time certificates of deposit not held for
trading.
3
<PAGE> 11
<TABLE>
<S><C>
Legal Title of Bank: NORWEST BANK COLORADO, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 BROADWAY Page RI-2
City, State Zip: DENVER, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RI--CONTINUED
--------------
Dollar Amounts in Thousands Year-to-date
- ---------------------------------------------------------------------------------------------------
RIAD Bil Mil Thou
1. Interest income (continued)
f. Interest income on federal funds sold and securities purchased under
agreements to resell ................................................... 4020 15,347 1.f.
g. Total interest income (sum of items 1.a through 1.f) ................... 4107 424,303 1.g.
2. Interest expense:
a. Interest on deposits:
(1) Interest on deposits in domestic offices:
(a) Transaction accounts (NOW accounts, ATS accounts, and
telephone and preauthorized transfer accounts) ................. 4508 978 2.a.(1)(a)
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs) ...................... 4509 50,738 2.a.(1)(b)(1)
(2) Other savings deposits ..................................... 4511 22,777 2.a.(1)(b)(2)
(3) Time deposits of $100,000 or more .......................... A517 16,356 2.a.(1)(b)(3)
(4) Time deposits of less than $100,000 ........................ A518 37,431 2.1.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge and Agreement
subsidiaries, and IBFs ............................................. 4172 11,856 2.a.(2)
b. Expense of federal funds purchased and securities sold under
agreements to repurchase ............................................... 4180 3,314 2.b.
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and other borrowed money .................................. 4185 26 2.c.
d. Not applicable
e. Interest on subordinated notes and debentures .......................... 4200 1,885 2.e.
f. Total interest expense (sum of items 2.a through 2.e) .................. 4073 145,361 2.f.
-----------------------
3. Net interest income (item 1.g minus 2.f) .................................. RIAD 4074 278,942 3.
-----------------------
-----------------------
4. Provisions:
a. Provision for credit losses ............................................ RIAD 4230 994 4.a.
b. Provision for allocated transfer risk .................................. RIAD 4243 0 4.b.
-----------------------
5. Noninterest income:
a. Income from fiduciary activities ....................................... 4070 24,653 5.a.
b. Service charges on deposit accounts in domestic offices ................ 4080 51,588 5.b.
c. Trading revenue (must equal Schedule RI, sum of Memorandum
items 8.a through 8.d) ................................................. A220 14,560 5.c.
d.-e. Not applicable
f. Other noninterest income:
(1) Other fee income ................................................... 5407 28,162 5.f.(1)
(2) All other noninterest income* ...................................... 5408 6,133 5.f.(2)
-----------------------
g. Total noninterest income (sum of items 5.a through 5.f) ................ RIAD 4079 125,096 5.g.
6. a. Realized gains (losses) on held-to-maturity securities ................. RIAD 3521 0 6.a.
b. Realized gains (losses) on available-for-sale securities ............... RIAD 3196 10,680 6.b.
-----------------------
7. Noninterest expense:
a. Salaries and employee benefits ......................................... 4135 83,799 7.a.
b. Expenses of premises and fixed assets (net of rental income)
(excluding salaries and employee benefits and mortgage interest) ....... 4217 31,069 7.b.
c. Other noninterest expense* ............................................. 4092 144,021 7.c.
-----------------------
d. Total noninterest expense (sum of items 7.a through 7.c) ............... RIAD 4093 258,889 7.d.
=======================
8. Income (loss) before income taxes and extraordinary items and other
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d).. RIAD 4301 154,835 8.
9. Applicable income taxes (on item 8) ....................................... RIAD 4302 50,306 9.
=======================
10. Income (loss) before extraordinary items and other adjustments (item 8
minus 9) .................................................................. RIAD 4300 104,529 10.
11. Extraordinary items and other adjustments, net of income taxes* ........... RIAD 4320 0 11.
12. Net income (loss) (sum of items 10 and 11) ................................ RIAD 4340 104,529 12.
-----------------------
- ----------
* Describe on Schedule RI-E--Explanations.
</TABLE>
4
<PAGE> 12
<TABLE>
<S><C>
Legal Title of Bank: NORWEST BANK COLORADO, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 BROADWAY Page RI-3
City, State Zip: DENVER, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RI--CONTINUED
----
I481
------------
Memoranda Year-to-date
------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------------
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after
August 7, 1986, that is not deductible for federal income tax purposes .......................... 4513 211 M.1.
2. Income from the sale and servicing of mutual funds and annuities in domestic offices
(included in Schedule RI, item 8) ............................................................... 8431 153 M.2.
3.-4. Not applicable
5. Number of full-time equivalent employees at end of current period (round to Number
nearest whole number) ........................................................................... 4150 2,860 M.5.
----
6. Not applicable
7. If the reporting bank has restated its balance sheet as a result of applying push down RIAD CC YY MM DD
accounting this calendar year, report the date of the bank's acquisition (1) .................... 9106 00 00 00 00 M.7.
----
8. Trading revenue (from cash instruments and off-balance sheet derivative instruments)
(sum of Memorandum items 8.a through 8.d must equal Schedule RI, item 5.c): Bil Mil Thou
a. Interest rate exposures ...................................................................... 8757 14,560 M.8.a.
b. Foreign exchange exposures ................................................................... 8758 0 M.8.b.
c. Equity security and index exposures .......................................................... 8759 0 M.8.c.
d. Commodity and other exposures ................................................................ 8760 0 M.8.d.
9. Impact on income of off-balance sheet derivatives held for purposes other than trading:
a. Net increase (decrease) to interest income ................................................... 8761 0 M.9.a.
b. Net (increase) decrease to interest expense .................................................. 8762 0 M.9.b.
c. Other (noninterest) allocations .............................................................. 8763 0 M.9.c.
10. Credit losses on off-balance sheet derivatives (see instructions) ............................... A251 0 M.10.
-----------------
11. Does the reporting bank have a Subchapter S election in effect for federal income tax YES NO
purposes for the current tax year? .............................................................. -----------------
A530 X M.11.
-----------------
12. Deferred portion of total applicable income taxes included in Schedule RI, Bil Mil Thou
items 9 and 11 (to be reported with the December Report of Income) .............................. -----------------
4772 N/A M.12.
-----------------
- ----------
(1) For example, a bank acquired on June 1, 1997, would report 19970601.
</TABLE>
5
<PAGE> 13
Legal Title of Bank: NORWEST BANK COLORADO, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 BROADWAY Page RI-4
City, State Zip: DENVER, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RI-A--CHANGES IN EQUITY CAPITAL
Indicate decreases and losses in parentheses.
<TABLE>
<CAPTION>
I483
----
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------ ---- --- --- ----
<S> <C> <C> <C> <C>
1. Total equity capital originally reported in the December 31, 1997, Reports of Condition
and Income ....................................................................................... 3215 449,549 1.
2. Equity capital adjustments from amended Reports of Income, net* .................................. 3216 0 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2) ............................. 3217 449,549 3.
4. Net income (loss) (must equal Schedule RI, item 12) .............................................. 4340 104,529 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net ............................... 4346 0 5.
6. Changes incident to business combinations, net ................................................... 4356 7,102 6.
7. LESS: Cash dividends declared on preferred stock ................................................. 4470 0 7.
8. LESS: Cash dividends declared on common stock .................................................... 4460 40,000 8.
9. Cumulative effect of changes in accounting principles from prior years* (see instructions for
this schedule) ................................................................................... 4411 0 9.
10. Corrections of material accounting errors from prior years* (see instructions for this schedule) 4412 0 10.
11. Change in net unrealized holding gains (losses) on available-for-sale securities ................. 8433 2,573 11.
12. Foreign currency translation adjustments ......................................................... 4414 0 12.
13. Oher transactions with parent holding company* (not included in items 5, 7, or 8 above) .......... 4415 0 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must equal
Schedule RC, item 28) ............................................................................ 3210 523,753 14.
----------------------
</TABLE>
- -------------
*Describe on Schedule RI-E--Explanations.
SCHEDULE RI-B--CHARGE-OFFS AND RECOVERIES ON LOANS AND LEASES AND CHANGES
IN ALLOWANCE FOR CREDIT LOSSES
PART I. CHARGE-OFFS AND RECOVERIES ON LOANS AND LEASES
Part I excludes charge-offs and recoveries through
the allocated transfer risk reserve.
<TABLE>
<CAPTION>
I486
----
(Column A) (Column B)
Charge-offs Recoveries
---------------------- ----------------------
Calendar year-to-date
-----------------------------------------------
Dollar Amounts in Thousands RIAD Bil Mil Thou RIAD Bil Mil Thou
- ---------------------------------------------------------------------------- ---- --- --- ---- ---- --- --- ----
<S> <C> <C> <C> <C> <C> <C>
1. Loans secured by real estate:
a. To U.S. addressees (domicile) ......................................... 4651 817 4661 1,695 1.a.
b. To non-U.S. addressees (domicile) ..................................... 4652 0 4662 0 1.b.
2. Loans to depository institutions and acceptances of other banks:
a. To U.S. banks and other U.S. depository institutions .................. 4653 0 4663 0 2.a.
b. To foreign banks ...................................................... 4654 0 4664 0 2.b.
3. Loans to finance agricultural producton and other loans to farmers ....... 4655 331 4665 82 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) ......................................... 4645 894 4617 1,425 4.a.
b. To non-U.S. addressees (domicile) ..................................... 4646 0 4618 0 4.b.
5. Loans to individuals for household, family, and other personal
expenditures:
a. Credit cards and related plans ........................................ 4656 338 4666 0 5.a.
b. Other (includes single payment, installment, and all student loans) ... 4657 7,765 4667 2,989 5.b.
6. Loans to foreign governments and official institutions ................... 4643 0 4627 0 6.
7. All other loans .......................................................... 4644 2,726 4628 599 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile) ......................................... 4658 0 4668 0 8.a.
b. Of non-U.S. addressees (domicile) ..................................... 4659 0 4669 0 8.b.
9. Total (sum of items 1 through 8) ......................................... 4635 12,871 4605 6,790 9.
-----------------------------------------------
</TABLE>
6
<PAGE> 14
Legal Title of Bank: NORWEST BANK COLORADO, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 BROADWAY Page RI-5
City, State Zip: DENVER, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RI-B -- CONTINUED
PART I. CONTINUED
<TABLE>
<CAPTION>
(Column A) (Column B)
Charge-offs Recoveries
-------------------------------------------
Memoranda Calendar year-to-date
-------------------------------------------
Dollar Amounts in Thousands RIAD BILL MIL THOU RIAD BIL MIL THOU
- --------------------------------------------------------------------------- -------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1-3. Not applicable
4. Loans to finance commercial real estate, Construction, and land
development activities (not secured by real estate) included in
Schedule RI-B, part I, items 4 and 7, above........................... 5409 0 5410 0 M.4.
5. Loans secured by real estate in domestic offices (included in
Schedule RI-B, part I, item 1, above):
a. Construction and land development................................. 3582 58 3583 89 M.5.a.
b. Secured by farmland............................................... 3584 0 3585 19 M.5.b.
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family residential
properties and extended under lines of credit................. 5411 0 5412 0 M.5.c.(1)
(2) All other loans secured by 1-4 family residential properties.. 5413 509 5414 590 M.5.c.(2)
d. Secured by multifamily (5 or more) residential properties......... 3588 0 3589 0 M.5.d.
e. Secured by nonfarm nonresidential properties...................... 3590 250 3591 997 M.5.e.
-------------------------------------------
</TABLE>
PART II. CHANGES IN ALLOWANCE FOR CREDIT LOSSES
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RIAD BIL MIL THOU
- -------------------------------------------------------------------------------------------------- --------------------
<S> <C> <C> <C> <C>
1. Balance originally reported in the December 31, 1997, Reports of Condition and Income......... 3124 79,389 1.
2. Recoveries (must equal or exceed part I, item 9, column B above).............................. 2419 6,790 2.
3. LESS: Charge-offs (must equal or exceed part I, Item 9, column A above)....................... 2432 12,871 3.
4. Provision for credit losses (must equal Schedule RI, item 4.a)................................ 4230 994 4.
5. Adjustments* (see instructions for this schedule)............................................. 4815 1,169 5.
6. Balance end of current period (sum of item 1 through 5) (must equal or exceed
Schedule RC, item 4.b)....................................................................... A512 75,471 6.
--------------------
</TABLE>
- ---------------
* Describe on Schedule RI-E -- Explanations.
7
<PAGE> 15
<TABLE>
<CAPTION>
<S> <C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RI-6
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
</TABLE>
SCHEDULE RI-D--INCOME FROM INTERNATIONAL OPERATIONS
For all banks with foreign offices, Edge or Agreement subsidiaries, or IBFs
where international operations account for more than 10 percent of total
revenues, total assets, or net income.
PART I. ESTIMATED INCOME FROM INTERNATIONAL OPERATIONS
<TABLE>
<CAPTION>
---------
| I492 | -
----------------
| Year-to-date |
-----------------------
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income and expense booked at foreign offices, Edge and Agreement subsidiaries, | |
and IBFs: | |
a. Interest income booked..................................................................... | 4837 N/A | 1.a.
b. Interest expense booked.................................................................... | 4838 N/A | 1.b.
c. Net interest income booked at foreign offices, Edge and Agreement subsidiaries, and | |
IBFs (item 1.a minus 1.b).................................................................. | 4839 N/A | 1.c.
2. Adjustments for booking location of international operations: | |
a. Net interest income attributable to international operations booked at domestic offices.... | 4840 N/A | 2.a.
b. Net interest income attributable to domestic business booked at foreign offices............ | 4841 N/A | 2.b.
c. Net booking location adjustment (item 2.a minus 2.b)....................................... | 4842 N/A | 2.c.
3. Noninterest income and expense attributable to international operations: | |
a. Noninterest income attributable to international operations................................ | 4097 N/A | 3.a.
b. Provision for loan and lease losses attributable to international operations............... | 4235 N/A | 3.b.
c. Other noninterest expense attributable to international operations......................... | 4239 N/A | 3.c.
d. Net noninterest income (expense) attributable to international operations (item 3.a | |
minus 3.b and 3.c)......................................................................... | 4843 N/A | 3.d.
4. Estimated pretax income attributable to international operations before capital allocation | |
adjustment (sum of items 1.c, 2.c, and 3.d)................................................... | 4844 N/A | 4.
5. Adjustment to pretax income for internal allocations to international operations to reflect | |
the effects of equity capital on overall bank funding costs................................... | 4845 N/A | 5.
6. Estimated pretax income attributable to international operations after capital allocation | |
adjustment (sum of items 4 and 5)............................................................. | 4846 N/A | 6.
7. Income taxes attributable to income from international operations as estimated in item 6...... | 4797 N/A | 7.
8. Estimated net income attributable to international operations (item 6 minus 7)................ | 4341 N/A | 8.
</TABLE>
Memoranda
<TABLE>
<CAPTION>
-----------------------
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Intracompany interest income included in item 1.a above....................................... | 4847 N/A | M.1.
2. Intracompany interest expense included in item 1.b above...................................... | 4848 N/A | M.2.
</TABLE>
PART II. SUPPLEMENTARY DETAILS ON INCOME FROM INTERNATIONAL OPERATIONS REQUIRED
BY THE DEPARTMENTS OF COMMERCE AND TREASURY FOR PURPOSES OF THE U.S.
INTERNATIONAL ACCOUNTS AND THE U.S. NATIONAL INCOME AND PRODUCT ACCOUNTS
<TABLE>
<CAPTION>
----------------
| Year-to-date |
-----------------------
Dollar Amounts in Thousands | RIAD Bil Mil Thou |
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income booked at IBFs................................................................ | 4849 N/A | 1.
2. Interest expense booked at IBFs............................................................... | 4850 N/A | 2.
3. Noninterest income attributable to international operations booked at domestic offices | |
(excluding IBFs): | |
a. Gains (losses) and extraordinary items..................................................... | 5491 N/A | 3.a.
b. Fees and other noninterest income.......................................................... | 5492 N/A | 3.b.
4. Provision for loan and lease losses attributable to international operations booked at domestic | |
offices (excluding IBFs)...................................................................... | 4852 N/A | 4.
5. Other noninterest expense attributable to international operations booked at domestic offices | |
(excluding IBFs).............................................................................. | 4853 N/A | 5.
</TABLE>
8
<PAGE> 16
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RI-7
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RI-E--EXPLANATIONS
SCHEDULE RI-E IS TO BE COMPLETED EACH QUARTER ON A CALENDAR YEAR-TO-DATE BASIS.
Detail all adjustments in Schedule RI-A and RI-B, all extraordinary items and
other adjustments in Schedule RI, and all significant items of other
noninterest income and other noninterest expense in Schedule RI. (See
instructions for details.)
<TABLE>
<CAPTION>
I495
----- ------
Year-to-date
----- ------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------- -------------------
<S> <C> <C> <C> <C>
1. All other noninterest income (from Schedule RI, item 5.f. (2))
Report amounts that exceed 10% of Schedule RI, item 5.f. (2):
a. Net gains (losses) on other real estate owned ...................................... 5415 0 1.a.
b. Net gains (losses) on sales of loans ............................................... 5416 0 1.b.
c. Net gains (losses) on sales of premises and fixed assets ........................... 5417 0 1.c.
Itemize and describe the three largest other amounts that exceed 10% of Schedule RI,
item 5.f. (2):
d. TEXT 4461 ATM Processing Fees 4461 2,439 1.d.
-----------------------------------------------------------------------------------
e. TEXT 4462 4462 1.e.
-----------------------------------------------------------------------------------
f. TEXT 4463 4463 1.f.
-----------------------------------------------------------------------------------
2. Other noninterest expense (from Schedule RI, item 7.c):
a. Amortization expense of intangible assets .......................................... 4531 0 2.a.
Report amounts that exceed 10% of Schedule RI, item 7.c:
b. Net (gains) losses on other real estate owned ...................................... 5418 0 2.b.
c. Net (gains) losses on sales of loans ............................................... 5419 0 2.c.
d. Net (gains) losses on sales of premises and fixed assets ........................... 5420 0 2.d.
Itemize and describe the three largest other amounts that exceed 10% of Schedule RI,
Item 7.c:
e. TEXT 4464 Operations Support 4464 42,103 2.e.
------------------------------------------------------------------------------------
f. TEXT 4467 4467 2.f.
------------------------------------------------------------------------------------
g. TEXT 4468 4468 2.g.
------------------------------------------------------------------------------------
3. Extraordinary items and other adjustments and applicable income tax effect
(from Schedule RI, item 11) (itemize and describe all extraordinary items and
other adjustments):
a. (1) TEXT 4469 4469 3.a.(1)
------------------------------------------------------------------------------------
(2) Applicable income tax effect RIAD 4486 3.a.(2)
b. (1) TEXT 4487 4487 3.b.(1)
------------------------------------------------------------------------------------
(2) Applicable income tax effect RIAD 4488 3.b.(2)
c. (1) TEXT 4489 4489 3.c.(1)
------------------------------------------------------------------------------------
(2) Applicable income tax effect RIAD 4491 3.c.(2)
4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A, item 2)
(itemize and describe all adjustments):
a. TEXT 4492 4492 4.a.
------------------------------------------------------------------------------------
b. TEXT 4493 4493 4.b.
------------------------------------------------------------------------------------
5. Cumulative effect of changes in accounting principles from prior years
(from Schedule RI-A, item 9) (itemize and describe all changes in accounting principles):
a. TEXT 4494 4494 5.a.
------------------------------------------------------------------------------------
b. TEXT 4495 4495 5.b.
------------------------------------------------------------------------------------
6. Corrections of material accounting errors from prior years (from Schedule RI-A, item 10)
(itemize and describe all corrections):
a. TEXT 4496 4496 6.a.
------------------------------------------------------------------------------------
b. TEXT 4497 4497 6.b.
------------------------------------------------------------------------------------
</TABLE>
9
<PAGE> 17
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RI-8
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RI-E--CONTINUED
<TABLE>
<CAPTION>
----- ------
Year-to-date
----- ------------
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -------------------------------------------------------------------------------------------- -------------------
<S> <C> <C> <C> <C> <C>
7. Other transactions with parent holding company (from Schedule RI-A, item 13)
(itemize and describe all such transactions):
a. TEXT 4498 4498 7.a.
------------------------------------------------------------------------------------
b. TEXT 4499 4499 7.b.
------------------------------------------------------------------------------------
8. Adjustments to allowance for credit losses (from Schedule RI-B, part II, item 5)
(itemize and describe all adjustments):
a. TEXT 4521 Acquisition-Bank of the Southwest 4521 1,169 8.a.
------------------------------------------------------------------------------------
b. TEXT 4522 4522 8.b.
------------------------------------------------------------------------------------ ------------------
9. Other explanations (the space below is provided for the bank to briefly describe, at its I498 I499
option, any other significant items affecting the Report of Income):
No comment [ ] (RIAD 4769)
Other explanations (please type or print clearly):
(TEXT 4769)
</TABLE>
10
<PAGE> 18
<TABLE>
<S> <C> <C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-1
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
--------
C400
-----------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1)................................... 0081 971,048 1.a.
b. Interest-bearing balances(2) ........................................................... 0071 59,793 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 3,395,077 2.b.
3. Federal funds sold and securities purchased under agreements to resell ...................... 1350 779,820 3.
4. Loans and lease financing receivables: --------------------
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 3,931,526 4.a.
b. LESS: Allowance for loan and lease losses ........................ RCFD 3123 75,471 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 3,856,055 4.d.
5. Trading assets (from Schedule RC-D) ......................................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases) .................................... 2145 105,424 6.
7. Other real estate owned (from Schedule RC-M) ................................................ 2150 1,059 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) .... 2130 0 8.
9. Customers' liability to this bank on acceptance outstanding ................................. 2155 1,566 9.
10. Intangible assets (from Schedule RC-M) ...................................................... 2143 53 10.
11. Other assets (from Schedule RC-F) ........................................................... 2160 254,622 11.
12. Total assets (sum of items 1 through 11) .................................................... 2170 9,424,517 12.
</TABLE>
- ------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
11
<PAGE> 19
<TABLE>
<S> <C> <C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-2
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC--CONTINUED
</TABLE>
<TABLE>
<CAPTION>
-----------------
Dollar Amounts in Thousands Bil Mil Thou
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E,
part I) ........................................................................... RCON 2200 7,793,874 13.a.
-----------------------
(1) Noninterest-bearing .................................... RCON 6631 2,895,510 13.a.(1)
(2) Interest-bearing ....................................... RCON 6636 4,898,364 13.a.
-----------------------
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E,
part II) .......................................................................... RCFN 2200 417,785 13.b.
-----------------------
(1) Noninterest-bearing... ................................. RCFN 6631 7,996 13.b.(1)
(2) Interest-bearing ....................................... RCFN 6636 409,789 13.b.(2)
-----------------------
14. Federal funds purchased and securities sold under agreements to repurchase .............. RCFD 2800 77,678 14.
15. a. Demand notes issued to the U.S. Treasury ........................................... RCON 2840 0 15.a.
b. Trading liabilities (from Schedule RC-D) ........................................... RCFD 3548 0 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
a. With a remaining maturity of one year or less ...................................... RCFD 2332 11,922 16.a.
b. With a remaining maturity of more than one year through three years ................ RCFD A547 0 16.b.
c. With a remaining maturity of more than three years ................................. RCFD A548 169 16.c.
17. Not applicable
18. Bank's liability on acceptances executed and outstanding ................................ RCFD 2920 1,566 18.
19. Subordinated notes and debentures(2) .................................................... RCFD 3200 42,000 19.
20. Other liabilities (from Schedule RC-G) .................................................. RCFD 2930 555,770 20.
21. Total liabilities (sum of items 13 through 20) .......................................... RCFD 2948 8,900,764 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................................... RCFD 3838 0 23.
24. Common stock ............................................................................ RCFD 3230 100,000 24.
25. Surplus (excludes all surplus related to preferred stock) ............................... RCFD 3839 224,907 25.
26. a. Undivided profits and capital reserves ............................................. RCFD 3632 169,687 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ............. RCFD 8434 29,159 26.b.
27. Cumulative foreign currency translation adjustments ..................................... RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27) ....................................... RCFD 3210 523,753 28.
29. Total liabilities and equity capital (sum of items 21 and 28) ........................... RCFD 3300 9,424,517 29.
</TABLE>
Memorandum
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
<TABLE>
<CAPTION> Number
----------------------
<S> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during 1997 ................... RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- -----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
12
<PAGE> 20
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-3
City, State Zip: Denver. CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC-A -- CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS
Exclude assets held for trading.
<TABLE>
<CAPTION>
C405
-------------------------------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
--------------------- --------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
- --------------------------------------------------------------------------- --------------------- --------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1. Cash items in process of collection, unposted debits, and currency and
coin................................................................... 0022 856,710 1.
a. Cash items in process of collection and unposted debits............ 0020 732,180 1.a.
b. Currency and coin.................................................. 0080 124,530 1.b.
2. Balances due from depository institutions in the U.S. ................. 0082 15,286 2.
a. U.S. branches and agencies of foreign banks (including their
IBFs).............................................................. 0083 0 2.a.
b. Other commercial banks in the U.S. and other depository
institutions in the U.S. (including their IBFs).................... 0085 15,286 2.b.
3. Balances due from banks in foreign countries and foreign central
banks.................................................................. 0070 59,792 3.
a. Foreign branches of other U.S. banks............................... 0073 59,792 3.a.
b. Other banks in foreign countries and foreign central banks......... 0074 0 3.b.
4. Balances due from Federal Reserve Banks ............................... 0090 99,053 0090 99,053 4.
5. Total (sum of items 1 through 4) (total of column A must equal
Schedule RC, sum of items 1. and 1.b) ................................. 0010 1,030,841 0010 1,030,841 5.
--------------------- --------------------
</TABLE>
<TABLE>
Memorandum Dollar Amounts in Thousands RCON Bil Mil Thou
- -------------------------------------------------------------------------------------------------- --------------------
<S> <C> <C> <C> <C>
1. Noninterest-bearing balances due from commercial banks in the U.S. (included in item 2.
column B above)............................................................................... 0050 15,286 M.1.
--------------------
</TABLE>
SCHEDULE RC-B -- SECURITIES
Exclude assets held for trading.
<TABLE>
<CAPTION>
C410
----------------------------------------------------------------------------------------
Held-to-maturity Available-for-sale
----------------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value(1)
--------------------- -------------------- --------------------- --------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ----------------------------------- --------------------- -------------------- --------------------- --------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1. U.S. Treasury securities....... 0211 0 0213 0 1286 26,182 1287 27,121 1.
2. U.S. Government agency obliga-
tions (exclude mortgage-backed
securities):
a. Issued by U.S. Government
agencies(2)................ 1289 0 1290 0 1291 0 1293 0 2.a
b. Issued by U.S. Government-
sponsored agencies(3)...... 1294 0 1295 0 1297 0 1298 0 2.b.
--------------------- -------------------- --------------------- --------------------
</TABLE>
- ---------------
(1) Includes equity securities without readily determinable fair values at
historical cost in items 6.b, column D.
(2) Includes Small Business Administration "Guaranteed Loan Pool Certificates,"
U.S. Maritime Administration obligations, and Export-Import Bank
participation certificates.
(3) Includes obligations (other than mortgage-backed securities) issued by the
Farm Credit System, the Federal Home Loan Bank System, the Federal Home
Loan Mortgage Corporation, the Federal National Mortgage Association, the
Financing Corporation, Resolution Funding Corporation, the Student Loan
Marketing Association, and the Tennessee Valley Authority.
13
<PAGE> 21
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address 1740 Broadway Page RC-4
City, State Zip: Denver, CO 80274-8604
FDIC Certificate No.: 03011 Printed 10/20/98 at 17:58
SCHEDULE RC-B--CONTINUED
<TABLE>
<CAPTION>
Held-to-maturity Available-for-sale
----------------------------------------- ---------------------------------------
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value(1)
------------------- -------------------- ------------------ ------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ------------------------------------ -------------------- -------------------- ------------------- ------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3. Securities issued by states
and political subdivisions
in the U.S.:
a. General obligations........... 1676 0 1677 0 1678 17,190 1679 17,598 3.a.
b. Revenue obligations........... 1681 0 1686 0 1690 26,815 1691 28,847 3.b.
c. Industrial development
and similar obligations....... 1694 0 1695 0 1696 0 1697 0 3.c.
4. Mortgage-backed
securities (MBS):
a. Pass-through securities:
(1) Guaranteed by
GNMA..................... 1698 0 1699 0 1701 331,894 1702 333,926 4.a.(1)
(2) Issued by FNMA
and FHLMC................ 1703 0 1705 0 1706 2,919,763 1707 2,958,962 4.a.(2)
(3) Other pass-through
securities............... 1709 0 1710 0 1711 0 1713 0 4.a.(3)
b. Other mortgage-backed
securities (include CMOs,
REMICs, and stripped
MBS):
(1) Issued or guaranteed
by FNMA, FHLMC,
or GNMA.................. 1714 0 1715 0 1716 17,432 1717 17,645 4.b.(1)
(2) Collateralized
by MBS issued or
guaranteed by FNMA,
FHLMC, or GNMA........... 1718 0 1719 0 1731 101 1732 101 4.b.(2)
(3) All other mortgage-backed
securities............... 1733 0 1734 0 1735 309 1736 309 4.b.(3)
5. Other debt securities:
a. Other domestic debt
securities................... 1737 0 1738 0 1739 801 1741 816 5.a.
b. Foreign debt
securities................... 1742 0 1743 0 1744 0 1746 0 5.b.
6. Equity securities:
a. Investments in mutual
funds and other equity
securities with readily
determinable fair values..... A510 33 A511 57 6.a.
b. All other equity
securities(1)................ 1752 9,695 1753 9,695 6.b.
7. Total (sum of items 1
through 6) (total of
column A must equal
Schedule RC, item 2.a)
(total of column D must
equal Schedule RC,
item 2.b)....................... 1754 0 1771 0 1772 3,350,215 1773 3,395,077 7.
</TABLE>
- ------------
(1) Includes equity securities without readily determinable fair
values at historical cost in item 6.b, column D.
14
<PAGE> 22
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-5
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC-B--CONTINUED
Memoranda
<TABLE>
<CAPTION>
C412
-----------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------ ---- --- --- ----
<S> <C> <C> <C> <C>
1. Pledged securities(1) ...................................................................... 0416 101,475 M.1.
2. Maturity and repricing data for debt securities(1),(2) (excluding those in
nonaccrual status):
a. Securities issued by the U.S. Treasury, U.S. Government agencies, and states and
political subdivisions in the U.S.; other non-mortgage debt securities; and mortgage
pass-through securities other than those backed by closed-end first lien 1-4 family
residential mortgages with a remaining maturity or repricing frequency of:(3)(4)
(1) Three months or less ................................................................ A549 9,250 M.2.a.(1)
(2) Over three months through 12 months ................................................. A550 3,295 M.2.a.(2)
(3) Over one year through three years ................................................... A551 16,630 M.2.a.(3)
(4) Over three years through five years ................................................. A552 16,979 M.2.a.(4)
(5) Over five years through 15 years .................................................... A553 18,066 M.2.a.(5)
(6) Over 15 years ....................................................................... A554 10,162 M.2.a.(6)
b. Mortgage pass-through securities backed by closed-end first lien 1-4 family residential
mortgages with a remaining maturity or repricing frequency of:(3)(5)
(1) Three months or less ................................................................ A555 55,995 M.2.b.(1)
(2) Over three months through 12 months ................................................. A556 24,812 M.2.b.(2)
(3) Over one year through three years ................................................... A557 0 M.2.b.(3)
(4) Over three years through five years ................................................. A558 0 M.2.b.(4)
(5) Over five years through 15 years .................................................... A559 110,145 M.2.b.(5)
(6) Over 15 years ....................................................................... A560 3,101,936 M.2.b.(6)
c. Other mortgage-backed securities (include CMOs, REMICs, and stripped MBS; exclude
mortgage pass-through securities) with an expected average life of:(6)
(1) Three years or less ................................................................. A561 565 M.2.c.(1)
(2) Over three years .................................................................... A562 17,490 M.2.c.(2)
d. Fixed rate AND floating rate debt securities with a REMAINING MATURITY of one year or
less (included in Memorandum items 2.a through 2.c above) ............................... A248 12,170 M.2.d.
3.-6. Not applicable
7. Amortized cost of held-to-maturity securities sold or transferred to available-for-sale or
trading securities during the calendar year-to-date (report the amortized cost at date of
sale or transfer) .......................................................................... 1778 0 M.7.
8. High-risk mortgage securities (included in the held-to-maturity and available-for-sale
accounts in Schedule RC-B, item 4.b):
a. Amortized cost .......................................................................... 8780 16,818 M.8.a.
b. Fair value .............................................................................. 8781 17,024 M.8.b.
9. Structured notes (included in the held-to-maturity and available-for-sale accounts in
Schedule RC-B, items 2, 3, and 5):
a. Amortized cost .......................................................................... 8782 233 M.9.a.
b. Fair value .............................................................................. 8783 250 M.9.b.
</TABLE>
- -------------
(1) Includes held-to-maturity securities at amortized cost and available-for-
sale securities at fair value.
(2) Exclude equity securities, e.g., investments in mutual funds, Federal
Reserve stock, common stock, and preferred stock.
(3) Report fixed rate debt securities by remaining maturity and floating rate
debt securities by repricing frequency.
(4) Sum of Memorandum items 2.a.(1) through 2.a.(6) plus any nonaccrual debt
securities in the categories of debt securities reported in Memorandum
item 2.a. that are included in Schedule RC-N, item 9, column C, must equal
Schedule RC-B, sum of items 1, 2, 3, and 5, columns A and D, plus mortgage
pass-through securities other than those backed by closed-end first lien
1-4 family residential mortgages included in Schedule RC-B, item 4.a.
columns A and D.
(5) Sum of Memorandum items 2.b.(1) through 2.b.(6) plus any nonaccrual mortgage
pass-through securities backed by closed-end first lien 1-4 family
residential mortgages included in Schedule RC-N, item 9, column C, must
equal Schedule RC-B, item 4.a. sum of columns A and D, less the amount of
mortgage pass-through securities other than those backed by closed-end first
lien 1-4 family residential mortgages included in Schedule RC-B, item 4.a,
columns A and D.
(6) Sum of Memorandum items 2.c.(1) and 2.c.(2) plus any nonaccrual "Other
mortgage-backed securities" included in Schedule RC-N, item 9, column C,
must equal Schedule RC-B, item 4.b, sum of columns A and D.
15
<PAGE> 23
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-6
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC-C--LOANS AND LEASE FINANCING RECEIVABLES
PART I. LOANS AND LEASES
Do not deduct the allowance for loan and lease losses from amounts
reported in this schedule. Report total loans and leases, net of unearned
income. Exclude assets held for trading and commercial paper.
<TABLE>
<CAPTION>
---------
C415
------------------- -------------------
(Column A) (Column B)
Consolidated Domestic
Bank Offices
------------------- -------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
- ------------------------------------------------------------------------------ ------------------- -------------------
<S> <C> <C> <C> <C>
1. Loans secured by real estate ............................................ 1410 1,988,138 1.
a. Construction and land development .................................... 1415 167,978 1.a.
b. Secured by farmland (including farm residential and other
improvements) ........................................................ 1420 25,473 1.b.
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family residential
properties and extended under lines of credit .................... 1797 309,890 1.c.(1)
(2) All other loans secured by 1-4 family residential properties:
(a) Secured by first liens ....................................... 5367 277,606 1.c.(2)(a)
(b) Secured by junior liens ...................................... 5368 743,509 1.c.(2)(b)
d. Secured by multifamily (5 or more) residential properties ............ 1460 26,191 1.d.
e. Secured by nonfarm nonresidential properties ......................... 1480 437,491 1.e.
2. Loans to depository institutions:
a. To commercial banks in the U.S. ...................................... 1505 0 2.a.
(1) To U.S. branches and agencies of foreign banks ................... 1506 0 2.a.(1)
(2) To other commercial banks in the U.S. ............................ 1507 0 2.a.(2)
b. To other depository institutions in the U.S. ......................... 1517 6,095 1517 6,095 2.b.
c. To banks in foreign countries ........................................ 1510 115 2.c.
(1) To foreign branches of other U.S. banks .......................... 1513 115 2.c.(1)
(2) To other banks in foreign countries .............................. 1516 0 2.c.(2)
3. Loans to finance agricultural production and other loans to farmers ..... 1590 82,656 1590 82,656 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) ........................................ 1763 787,481 1763 787,481 4.a.
b. To non-U.S. addressees (domicile) .................................... 1764 0 1764 0 4.b.
5. Acceptances of other banks:
a. Of U.S. banks ........................................................ 1756 0 1756 0 5.a.
b. Of foreign banks ..................................................... 1757 0 1757 0 5.b.
6. Loans to individuals for household, family, and other personal
expenditures (i.e., consumer loans) (includes purchased paper) .......... 1975 973,489 6.
a. Credit cards and related plans (includes check credit and other
revolving credit plans) .............................................. 2008 69,517 6.a.
b. Other (includes single payment, installment, and all student loans)... 2011 903,972 6.b.
7. Loans to foreign governments and official institutions (including
foreign central banks ................................................... 2081 0 2081 0 7.
8. Obligations (other than securities and leases) of states and political
subdivisions in the U.S. ................................................ 2107 11,476 2107 11,476 8.
9. Other loans ............................................................. 1563 85,415 9.
a. Loans for purchasing or carrying securities (secured and unsecured) .. 1545 7,774 9.a.
b. All other loans (exclude consumer loans) ............................. 1564 77,641 9.b.
10. Lease financing receivables (net of unearned income) .................... 2165 0 10.
a. Of U.S. addressees (domicile) ........................................ 2182 0 10.a.
b. Of non-U.S. addressees (domicile) .................................... 2183 0 10.b.
11. LESS: Any unearned income on loans reflected in items 1-9 above ........ 2123 3,339 2123 3,339 11.
12. Total loans and leases, net of unearned income (sum of items 1
through 10 minus item 11) (total of column A must equal
Schedule RC, item 4.a.) ................................................. 2122 3,931,526 2122 3,931,526 12.
</TABLE>
16
<PAGE> 24
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-7
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC-C--CONTINUED
PART I. CONTINUED
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands Bil Mil Thou
- --------------------------------------------------------------------------------------------- -----------------------
<S> <C> <C> <C> <C>
1. Not applicable
2. Loans and leases restructured and in compliance with modified terms (included in Schedule
RC-C, part I, above and not reported as past due or nonaccrual in Schedule RC-N,
Memorandum item 1):
a. Loans secured by real estate:
(1) To U.S. addresses (domicile) .................................................... RCFD 1687 0 M.2.a.(1)
(2) To non-U.S. addresses (domicile) ................................................ RCFD 1689 0 M.2.a.(2)
b. All other loans and all lease financing receivables (exclude loans to individuals for
household, family, and other personal expenditures) ................................. RCFD 8691 0 M.2.b.
c. Commercial and industrial loans to and lease financing receivables of non-U.S.
addresses (domicile) included in Memorandum item 2.b above .......................... RCFD 8692 0 M.2.c.
3. Maturity and repricing data for loans and leases (excluding those in nonaccrual status):
a. Closed-end loans secured by first liens on 1-4 family residential properties
in domestic offices (reported in Schedule RC-C, part I, item 1.c.(2)(a), column B)
with a remaining maturity or repricing frequency of: (1)(2)
(1) Three months or less ............................................................ RCON A564 20,969 M.3.a.(1)
(2) Over three months through 12 months ............................................. RCON A565 27,710 M.3.a.(2)
(3) Over one year through three years ............................................... RCON A566 10,919 M.3.a.(3)
(4) Over three years through five years ............................................. RCON A567 23,941 M.3.a.(4)
(5) Over five years through 15 years ................................................ RCON A568 30,879 M.3.a.(5)
(6) Over 15 years ................................................................... RCON A569 163,188 M.3.a.(6)
b. All loans and leases (reported in Schedule RC-C, part I, items 1 through 10, column A)
EXCLUDING closed-end loans secured by first liens on 1-4 family residential
properties in domestic offices (reported in Schedule RC-C, part I, item 1.c.(2)(a),
column B) with a remaining maturity or repricing frequency of: (1)(3)
(1) Three months or less ............................................................ RCFD A570 1,117,887 M.3.b.(1)
(2) Over three months through 12 months ............................................. RCFD A571 564,807 M.3.b.(2)
(3) Over one year through three years ............................................... RCFD A572 401,021 M.3.b.(3)
(4) Over three years through five years ............................................. RCFD A573 956,312 M.3.b.(4)
(5) Over five years through 15 years ................................................ RCFD A574 500,771 M.3.b.(5)
(6) Over 15 years ................................................................... RCFD A575 108,900 M.3.b.(6)
c. Fixed rate AND floating rate loans and leases (reported in Schedule RC-C, part I,
items 1 through 10, column A) with a REMAINING MATURITY of one year or less ......... RCFD A247 1,757,621 M.3.c.
d. Fixed rate AND floating rate loans secured by nonfarm nonresidential properties in
domestic offices (reported in Schedule RC-C, part I, item 1.e, column B) with a
REMAINING MATURITY of over five years ............................................... RCON A577 0 M.3.d.
e. Fixed rate AND floating rate commercial and industrial loans (reported in
Schedule RC-C, part I, item 4, column A) with a REMAINING MATURITY of over three years RCFD A578 0 M.3.e.
</TABLE>
- -----------
(1) Report fixed rate loans and leases by remaining maturity and floating rate
loans by repricing frequency.
(2) Sum of Memorandum items 3.a.(1) through 3.a.(6) plus total nonaccrual
closed-end loans secured by first liens on 1-4 family residential
properties in domestic offices included in Schedule RC-N, Memorandum item
3.c.(2), column C, must equal total closed-end loans secured by first liens
on 1-4 family residential properties from Schedule RC-C, part I, item
1.c(2)(a), column B.
(3) Sum of Memorandum items 3.b.(1) through 3.b.(6) plus total nonaccrual
loans and leases from Schedule RC-N, sum of items 1 through 8, column C,
minus nonaccrual closed-end loans secured by first liens on 1-4 family
residential properties in domestic offices included in Schedule RC-N,
Memorandum item 3.c.(2), column C, must equal total loans and leases from
Schedule RC-C, part I, sum of items 1 through 10, column A, minus total
closed-end loans secured by first liens on 1-4 family residential
properties in domestic offices from Schedule RC-C, part I, item 1.c.(2)(a),
column B.
17
<PAGE> 25
<TABLE>
<S><C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-8
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC-C--CONTINUED
PART I. CONTINUED
Memoranda (continued)
Dollar Amounts in Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------- ------------------
4. Loans to finance commercial real estate, construction, and land development activities
(not secured by real estate) included in Schedule RC-C, part I, items 4 and 9, column A,
page RC-6(1) ..................................................................................... RCFD 2746 0 M.4.
5. Loans and leases held for sale (included in Schedule RC-C, part I, page RC-6) .................... RCFD 5369 0 M.5.
6. Adjustable rate closed-end loans secured by first liens on 1-4 family residential properties
in domestic offices (included in Schedule RC-C, part I, item 1.c.(2)(a), column B, page RC-6 ..... RCON 5370 91,720 M.6.
- ------------
(1) Exclude loans secured by real estate that are included in Schedule RC-C, part I, item 1, column A.
</TABLE>
<TABLE>
<S><C>
SCHEDULE RC-D--TRADING ASSETS AND LIABILITIES
Schedule RC-D is to be completed only by banks with $1 billion or more in total assets or with $2 billion or more in par/notional
amount of off-balance sheet derivative contracts (as reported in Schedule RC-L, items 14.a through 14.e, columns A through D).
C420
----
Dollar Amounts in Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------- ------------------
ASSETS
1. U.S. Treasury securities in domestic offices ..................................................... RCON 3531 0 1.
2. U.S. Government agency obligations in domestic offices (exclude mortgage-backed securities) ...... RCON 3532 0 2.
3. Securities issued by states and political subdivisions in the U.S. in domestic offices ........... RCON 3533 0 3.
4. Mortgage-backed securities (MSB) in domestic offices:
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA ........................ RCON 3534 0 4.a.
b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or GNMA
(include CMOs, REMICs, and stripped MBS) .................................................... RCON 3535 0 4.b.
c. All other mortgage-backed securities ........................................................ RCON 3536 0 4.c.
5. Other debt securities in domestic offices ........................................................ RCON 3537 0 5.
6.-8. Not applicable.
9. Other trading assets in domestic offices ......................................................... RCON 3541 0 9.
10. Trading assets in foreign offices ................................................................ RCFN 3542 0 10.
11. Revaluation gains on interest rate, foreign exchange rate, and other commodity and equity
contracts:
a. In domestic offices ......................................................................... RCON 3543 0 11.a.
b. In foreign offices .......................................................................... RCFN 3543 0 11.b.
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5) ................ RCFD 3545 0 12.
LIABILITIES
13. Liability for short positions .................................................................... RCFD 3546 0 13.
14. Revaluation losses on interest rate, foreign exchange rate, and other commodity and equity
contracts ........................................................................................ RCFD 3547 0 14.
15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule RC, item 15.b) ........... RCFD 3548 0 15.
</TABLE>
18
<PAGE> 26
<TABLE>
<S><C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-9
City, State Zip: Denver, CO 80274-8604 Printed 10/22/98 at 15:42
FDIC Certificate No.: 03011
SCHEDULE RC-E--DEPOSIT LIABILITIES
PART I. DEPOSITS IN DOMESTIC OFFICES
----
C425
--------------------------------------------------------
Nontransaction
Transaction Accounts Accounts
--------------------------------------------------------
(Column A) (Column B) (Column C)
Total transaction Memo: Total Total
accounts (including demand deposits nontransaction
total demand (included in accounts
deposits) column A) (including MMDAs)
-------------------------------------------------------
Dollar Amounts in Thousands RCON Bil Mil Thou RCON Bil Mil Thou RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
Deposits of:
1. Individuals, partnerships, and corporations ................ 2201 1,708,374 2240 1,581,315 2346 5,157,883 1.
2. U.S. Government ............................................ 2202 6,818 2280 6,818 2520 0 2.
3. States and political subdivisions in the U.S. .............. 2203 92,697 2290 68,213 2530 143,488 3.
4. Commercial banks in the U.S. ............................... 2206 337,258 2310 337,258 2550 0 4.
5. Other depository institutions in the U.S. .................. 2207 5,885 2312 5,885 2349 0 5.
6. Banks in foreign countries ................................. 2213 22,351 2320 22,351 2336 0 6.
7. Foreign governments and official institutions
(including foreign central banks) .......................... 2216 0 2300 0 2377 122,508 7.
8. Certified and official checks .............................. 2330 196,612 2330 196,612 8.
9. Total (sum of items 1 through 8) (sum of
columns A and C must equal Schedule RC,
item 13.a) ................................................. 2215 2,369,995 2210 2,218,452 2385 5,423,879 9.
Memoranda
-----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
1. Selected components of total deposits (i.e., sum of item 9, columns a and C):
a. Total Individual Retirement Accounts (IRAs) and Keogh Plan Accounts ........................... 6835 159,734 M.1.a.
b. Total brokered deposits ....................................................................... 2365 0 M.1.b.
c. Fully insured brokered deposits (included in Memorandum item 1.b above):
(1) Issued in denominations of less than $100,000 ............................................. 2343 0 M.1.c.(1)
(2) Issued either in denominations of $100,000 or in denominations greater than
$100,000 and participated out by the broker in shares of $100,000 or less ................. 2344 0 M.1.c.(2)
d. Maturity data for brokered deposits:
(1) Brokered deposits issued in denominations of less than $100,000 with a remaining
maturity of one year or less (included in Memorandum item 1.c.(1) above) .................. A243 0 M.1.d.(1)
(2) Brokered deposits issued in denominations of $100,000 or more with a remaining
maturity of one year or less (included in Memorandum item 1.b above) ...................... A244 0 M.a.d.(2)
e. Preferred deposits (uninsured deposits of states and political subdivisions in the U.S.
reported in item 3 above which are secured or collateralized as required under state law)
(to be completed for the December report only) ................................................ 5590 N/A M.1.e.
2. Components of total nontransaction accounts (sum of Memorandum items 2.a through 2.d
must equal item 9, column C above):
a. Savings deposits:
(1) Money market deposit accounts (MMDAs) ..................................................... 6810 1,865,696 M.2.a.(1)
(2) Other savings deposits (excludes MMDAs) ................................................... 0352 2,268,212 M.2.a.(2)
b. Total time deposits of less than $100,000 ..................................................... 6648 906,953 M.2.b.
c. Total time deposits of $100,000 or more ....................................................... 2604 383,018 M.2.c.
3. All NOW accounts (included in column A above) .................................................... 2398 151,543 M.3.
4. Not applicable
</TABLE>
19
<PAGE> 27
<TABLE>
<S><C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-10
City, State Zip: Denver, CO 80274-8604 Printed 10/22/98 at 15:42
FDIC Certificate No.: 03011
SCHEDULE RC-E--CONTINUED
PART I. CONTINUED
Memoranda (continued)
-----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
5. Maturity and repricing data for time deposits of less than $100,000:
a. Time deposits of less than $100,000 with a remaining maturity or repricing frequency
of: (1)(2)
(1) Three months or less ...................................................................... A579 205,089 M.5.a.(1)
(2) Over three months through 12 months ....................................................... A580 455,928 M.5.a.(2)
(3) Over one year through three years ......................................................... A581 194,379 M.5.a.(3)
(4) Over three years .......................................................................... A582 51,557 M.5.a.(4)
b. Fixed rate AND floating rate time deposits of less than $100,000 with a REMAINING MATURITY
of one year or less (included in Memorandum items 5.a.(1) through 5.a.(4) above) .............. A241 661,017 M.5.b.
6. Maturity and repricing data for time deposits of $100,000 or more:
a. Time deposits of $100,000 or more with a remaining maturity or repricing frequency of: (1)(3)
(1) Three months or less ...................................................................... A584 246,428 M.6.a.(1)
(2) Over three months through 12 months ....................................................... A585 100,879 M.6.a.(2)
(3) Over one year through three years ......................................................... A586 28,649 M.6.a.(3)
(4) Over three years .......................................................................... A587 7,062 M.6.a.(4)
b. Fixed rate AND floating rate time deposits of $100,000 or more with a REMAINING MATURITY of
one year or less (included in Memorandum items 6.a.(1) through 6.a.(4) above) ................. A242 347,305 M.6.b.
- ------------
(1) Report fixed rate time deposits by remaining maturity and floating rate time deposits by repricing frequency.
(2) Sum of Memorandum items 5.a.(1) through 5.a.(4) must equal Schedule RC-E, Memorandum item 2.b above.
(3) Sum of Memorandum items 6.a.(1) through 6.a.(4) must equal Schedule RC-E, Memorandum item 2.c above.
</TABLE>
20
<PAGE> 28
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-11
City, State Zip: Denver, CO 80274-8604 Printed 10/22/98 at 15:42
FDIC Certificate No.: 03011
SCHEDULE RC-E--CONTINUED
PART II. DEPOSITS IN FOREIGN OFFICES (INCLUDING EDGE AND
AGREEMENT SUBSIDIARIES AND IBFs)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCFN Bil Mil Thou
- -------------------------------------------------------------------------------------------------- ---- --- --- ----
<S> <C> <C> <C> <C>
Deposits of:
1. Individuals, partnerships, and corporations.................................................. 2621 417,785 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks).............................. 2623 0 2.
3. Foreign banks (including U.S. branches and agencies of foreign banks, including their IBFs).. 2625 0 3.
4. Foreign governments and official institutions (including foreign central banks).............. 2650 0 4.
5. Certified and official checks................................................................ 2330 0 5.
6. All other deposits........................................................................... 2668 0 6.
7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b)......................... 2200 417,785 7.
Memorandum
Dollar Amounts in Thousands RCFN Bil Mil Thou
- -------------------------------------------------------------------------------------------------- ---- --- --- ----
1. Time deposits with a remaining maturity of one year or less (included in Part II, item 7 above) A245 417,785 M.1.
SCHEDULE RC-F--OTHER ASSETS
C430
----
Dollar Amounts in Thousands Bil Mil Thou
- -------------------------------------------------------------------------------------------------- --------- --- --- ----
1. Income earned, not collected on loans.......................................................... RCFD 2164 22,910 1.
2. Net deferred tax assets(1)..................................................................... RCFD 2148 21,150 2.
3. Interest-only strips receivable (not in the form of a security)(2) on:
a. Mortgage loans.............................................................................. RCFD A519 0 3.a.
b. Other financial assets...................................................................... RCFD A520 0 3.b.
4. Other (itemize and describe amounts that exceed 25% of this item).............................. RCFD 2168 210,562 4.
a. TEXT 3549 Bank Owned Life Insurance RCFD 3549 57,206 4.a.
-----------------------------------------------------------------
b. TEXT 3550 RCFD 3550 4.b.
-----------------------------------------------------------------
c. TEXT 3551 RCFD 3551 4.c.
-----------------------------------------------------------------
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11)............................. RCFD 2160 254,622 5.
Memorandum Dollar Amounts in Thousands Bil Mil Thou
- -------------------------------------------------------------------------------------------------- --------- --- --- ----
1. Deferred tax assets disallowed for regulatory capital purposes................................. RCFD 5610 0 M.1.
SCHEDULE RC-G--LIABILITIES
C435
----
Dollar Amounts in Thousands Bil Mil Thou
- -------------------------------------------------------------------------------------------------- --------- --- --- ----
1. a. Interest accrued and unpaid on deposits in domestic offices(3).............................. RCON 3645 14,756 1.a.
b. Other expenses accrued and unpaid (includes accrued income taxes payable)................... RCFD 3646 61,454 1.b.
2. Net deferred tax liabilities(1)................................................................ RCFD 3049 0 2.
3. Minority interest in consolidated subsidiaries................................................. RCFD 3000 0 3.
4. Other (itemize and describe amounts that exceed 25% of this item).............................. RCFD 2938 479,560 4.
a. TEXT 3552 Trade Date Accounting--Security Trans. RCFD 3552 327,620 4.a.
-----------------------------------------------------------------
b. TEXT 3553 RCFD 3553 4.b.
-----------------------------------------------------------------
c. TEXT 3554 RCFD 3554 4.c.
-----------------------------------------------------------------
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20)............................. RCFD 2930 555,770 5.
</TABLE>
- --------------
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) Report interest-only strips receivable in the form of a security as
available-for-sale securities
(3) For savings banks, include "dividends" accrued and unpaid on deposits.
21
<PAGE> 29
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-12
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC-H--SELECTED BALANCE SHEET ITEMS FOR DOMESTIC OFFICES
<TABLE>
<CAPTION>
----
C440
-----------------------
Domestic Offices
----------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------ ---- --- --- ----
<S> <C> <C> <C> <C>
1. Customers' liability to this bank on acceptances outstanding ............................... 2155 1,566 1.
2. Bank's liability on acceptances executed and outstanding ................................... 2920 1,566 2.
3. Federal funds sold and securities purchased under agreements to resell ..................... 1350 779,820 3.
4. Federal funds purchased and securities sold under agreements to repurchase ................. 2800 77,678 4.
5. Other borrowed money ....................................................................... 3190 11,922 5.
EITHER
6. Net due from own foreign offices, Edge and Agreement subsidiaries, and IBFs ................ 2163 N/A 6.
OR
7. Net due to own foreign offices, Edge and Agreement subsidiaries, and IBFs .................. 2941 369,915 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreement subsidiaries, and
IBFs) ...................................................................................... 2192 9,424,517 8.
9. Total liabilities (excludes net due to foreign offices, Edge and Agreement subsidiaries,
and IBFs ................................................................................... 3129 8,435,105 9.
</TABLE>
<TABLE>
<CAPTION>
RCON Bil Mil Thou
In items 10-17, report the amortized (historical) cost of both held-to-maturity and ---- --- --- ----
available-for-sale securities in domestic offices.
<S> <C> <C> <C> <C>
10. U.S. Treasury securities ................................................................... 1039 26,182 10.
11. U.S. Government agency obligations (exclude mortgage-backed securities) .................... 1041 0 11.
12. Securities issued by states and political subdivisions in the U.S. ......................... 1042 44,005 12.
13. Mortgage-backed securities (MBS):
a. Pass-through securities:
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA ........................................ 1043 3,251,657 13.a.(1)
(2) Other pass-through securities ....................................................... 1044 0 13.a.(2)
b. Other mortgage-backed securities (include CMOs, REMICs, and stripped MBS):
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA ........................................ 1209 17,432 13.b.(1)
(2) All other mortgage-backed securities ................................................ 1280 410 13.b.(2)
14. Other domestic debt securities ............................................................. 1281 801 14.
15. Foreign debt securities .................................................................... 1282 0 15.
16. Equity securities:
a. Investments in mutual funds and other equity securities with readily
determinable fair values ................................................................ A510 33 16.a.
b. All other equity securities ............................................................. 1752 9,695 16.b.
17. Total amortized (historical) cost of both held-to-maturity and available-for-sale
securities (sum of items 10 through 14) .................................................... 1374 3,350,215 17.
</TABLE>
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
<TABLE>
<CAPTION>
----------------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------ ---- --- --- ----
<S> <C> <C> <C> <C>
EITHER
1. Net due from the IBF of the domestic offices of the reporting bank ......................... 3051 397 M.1.
OR
2. Net due to the IBF of the domestic offices of the reporting bank ........................... 3059 N/A M.2.
</TABLE>
22
<PAGE> 30
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-13
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 18:52
FDIC Certificate No.: 03011
SCHEDULE RC-I -- SELECTED ASSETS AND LIABILITIES OF IBFs
To be completed only by banks with IBFs and other "foreign" offices.
<TABLE>
<CAPTION>
C445
----
Dollar Amounts in Thousands RCFN Bil Mil Thou
- --------------------------------------------------------------------------------------------------- --------------------
<S> <C> <C> <C> <C>
1. Total IBF assets of the consolidated bank (component of Schedule RC, item 12)................ 2133 0 1.
2. Total IBF loans and leases financing receivables (component of Schedule RC-C, part I,
item 12, column A)........................................................................... 2076 0 2.
3. IBF commercial and industrial loans (component of Schedule RC-C, part I, item 4, column A)... 2077 0 3.
4. Total IBF liabilities (component of Schedule RC, item 21).................................... 2898 397 4.
5. IBF deposit liabilities due to banks, including other IBFs (component of Schedule RC-E,
part II, items 2 and 3)...................................................................... 2379 0 5.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1, 4, 5, and 6).... 2381 0 6.
</TABLE>
SCHEDULE RC-K -- QUARTERLY AVERAGES(1)
<TABLE>
<CAPTION>
C455
----
Dollar Amounts in Thousands Bil Mil Thou
- -------------------------------------------------------------------------------------------------- --------------------
<S> <C> <C> <C> <C>
ASSETS
1. Interest-bearing balances due from depository institutions................................... RCFD 3381 830,869 1.
2. U.S. Treasury securities and U.S. Government agency obligations(2)........................... RCFD 3382 2,930,830 2.
3. Securities issued by states and political subdivisions in the U.S.(2)........................ RCFD 3383 444,747 3.
4. a. Other debt securities(2)................................................................. RCFD 3647 1,187 4.a.
b. Equity securities(3) (includes investments in mutual funds and Federal Reserve stock).... RCFD 3648 9,877 4.b.
5. Federal funds sold and securities purchased under agreements to resell ...................... RCFD 3365 481,770 5.
6. Loans:
a. Loans in domestic offices:
(1) Total loans......................................................................... RCON 3360 3,912,243 6.a.(1)
(2) Loans secured by real estate........................................................ RCON 3385 1,935,284 6.a.(2)
(3) Loans to finance agricultural production and other loans to farmers ................ RCON 3386 86,855 6.a.(3)
(4) Commercial and industrial loans .................................................... RCON 3387 878,313 6.a.(4)
(5) Loans to individuals for household, family, and other personal expenditures......... RCON 3388 775,732 6.a.(5)
b. Total loans in foreign offices, Edge and Agreement subsidiaries, and IBFs ............... RCFN 3360 0 6.b.
7. Trading assets .............................................................................. RCFD 3401 74,576 7.
8. Lease financing receivables (net of unearned income) ........................................ RCFD 3484 0 8.
9. Total assets(4) ............................................................................. RCFD 3368 8,805,573 9.
LIABILITIES
10. Interest-bearing transaction accounts in domestic offices (NOW accounts, ATS accounts,
and telephone and preauthorized transfer accounts) (exclude demand deposits) ................ RCON 3485 147,833 10.
11. Nontransaction accounts in domestic offices:
a. Money market deposit accounts (MMDAs) ................................................... RCON 3486 1,874,521 11.a.
b. Other savings deposits................................................................... RCON 3487 2,300,907 11.b.
c. Time deposits of $100,000 or more ....................................................... RCON A514 375,318 11.c.
d. Time deposits of less than $100,000 ..................................................... RCON A529 904,541 11.d.
12. Interest-bearing deposits in foreign offices, Edge and Agreement subsidiaries, and IBFs...... RCFN 3404 381,468 12.
13. Federal funds purchased and securities sold under agreements to repurchase .................. RCFD 3353 84,859 13.
14. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases) ......................................................................... RCFD 3355 19,510 14.
</TABLE>
- -----------------
(1) For all items, banks have the option of reporting either (1) an average of
daily figures for the quarter, or (2) an average of weekly figures (i.e.,
the Wednesday of each week of the quarter).
(2) Quarterly averages for all debt securities should be based on amortized
cost.
(3) Quarterly averages for all equity securities should be based on historical
cost.
(4) The quarterly average for total assets should reflect all debt securities
(not held for trading) at amortized cost, equity securities with readily
determinable fair values at the lower of cost or fair value, and equity
securities without readily determinable fair values at historical cost.
23
<PAGE> 31
<TABLE>
<S> <C> <C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 17040 Broadway Page RC-14
City, State Zip: Denver, OCO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
</TABLE>
SCHEDULE RC-L--OFF-BALANCE SHEET ITEMS
Please read carefully the instructions for the preparation of Schedule RC-L.
Some of the amounts reported in Schedule RC-L are regarded as volume indicators
and not necessarily as measures of risk.
<TABLE>
<CAPTION>
C460
-----------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- --------------------------------------------------------------------------------------------------- -----------------
<S> <C> <C> <C> <C>
1. Unused commitments:
a. Revolving, open-end lines secured by 1-4 family residential properties, e.g., home equity
lines .................................................................................... 3814 480,344 1.a.
b. Credit card lines ........................................................................ 3815 0 1.b.
c. Commercial real estate, construction, and land development:
(1) Commitments to fund loans secured by real estate ..................................... 3816 849,945 1.c.(1)
(2) Commitments to fund loans not secured by real estate ................................. 6550 22,161 1.c.(2)
d. Securities underwriting .................................................................. 3817 0 1.d.
e. Other unused commitments ................................................................. 3818 914,643 1.e.
2. Financial standby letters of credit and foreign office guarantees ............................. 3819 45,896 2.
a. Amount of financial standby letters of credit conveyed to others ... RCFD 3820 0 2.a.
3. Performance standby letters of credit and foreign office guarantees ........................... 3821 0 3.
a. Amount of performance standby letters of credit conveyed to others .. RCFD 3822 0 3.a.
4. Commercial and similar letters of credit ...................................................... 3411 102,949 4.
5. Participations in acceptances (as described in the instructions) conveyed to others by the
reporting bank ................................................................................ 3428 0 5.
6. Participations in acceptances (as described in the instructions) acquired by the reporting
(nonaccepting) bank ........................................................................... 3429 0 6.
7. Securities borrowed ........................................................................... 3432 516,278 7.
8. Securities lent (including customers' securities lent where the customer is indemnified against
loss by the reporting bank) ................................................................... 3433 1,119,531 8.
9. Financial assets transferred with recourse that have been treated as sold for
Call Report purposes:
a. First lien 1-to-4 family residential mortgage loans:
(1) Outstanding principal balance of mortgages transferred as of the report date ......... A521 0 9.a.(1)
(2) Amount of recourse exposure on these mortgages as of the report date ................. A522 0 9.a.(2)
b. Other financial assets (excluding small business obligations reported in item 9.c):
(1) Outstanding principal balance of assets transferred as of the report date ............ A523 0 9.b.(1)
(2) Amount of recourse exposure on these assets as of the report date .................... A524 0 9.b.(2)
c. Small business obligations transferred with recourse under Section 208 of the
Riegle Community Development and Regulatory Improvement Act of 1994:
(1) Outstanding principal balance of small business obligations transferred
as of the report date ................................................................ A249 0 9.c.(1)
(2) Amount of retained recourse on these obligations as of the report date ............... A250 0 9.c.(2)
10. Notional amount of credit derivatives:
a. Credit derivatives on which the reporting bank is the guarantor .......................... A534 0 10.a.
b. Credit derivatives on which the reporting bank is the beneficiary ........................ A535 0 10.b.
11. Spot foreign exchange contracts ............................................................... 8765 0 11.
12. All other off-balance sheet liabilities (exclude off-balance sheet derivatives) (itemize and
describe each component of this item over 25% of Schedule RC, item 28, "Total equity
capital") .................................................................................... 3430 0 12.
a. TEXT 3555 ............................................... RCFD 3555 12.a.
b. TEXT 3556 ............................................... RCFD 3556 12.b.
c. TEXT 3557 ............................................... RCFD 3557 12.c.
d. TEXT 3558 ............................................... RCFD 3558 12.d.
</TABLE>
24
<PAGE> 32
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 331
Address: 1740 Broadway Page RC-15
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC-L--CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------ ---- --- --- ----
<S> <C> <C> <C> <C> <C>
13. All other off-balance sheet assets (exclude off-balance sheet derivatives) (itemize and
describe each component of this item over 25% of Schedule RC, item 28, "Total equity capital") 5591 0 13.
a. TEXT 5592.............................................................RCFD 5592 13.a.
b. TEXT 5593.............................................................RCFD 5593 13.b.
c. TEXT 5594.............................................................RCFD 5584 13.c.
d. TEXT 5595.............................................................RCFD 5595 13.d.
C461
----
(Column A) (Column B) (Column C) (Column D)
Dollar Amounts in Thousands Interest Rate Foreign Exchange Equity Derivative Commodity and
- -------------------------------------------- Contracts Contracts Contracts Other Contracts
Off-balance Sheet Derivatives ------------------ ----------------- ----------------- -----------------
Position Indicators Tril Bil Mil Thou Tril Bil Mil Thou Tril Bil Mil Thou Tril Bil Mil Thou
- -------------------------------------------- ------------------ ----------------- ----------------- -----------------
14. Gross amounts (e.g., notional
amounts) (for each column, sum of
items 14.a through 14.e must equal
sum of items 15, 16.a, and 16.b): ------------------ ----------------- ----------------- -----------------
a. Futures contracts..................... 0 0 0 0 14.a.
------------------ ----------------- ----------------- -----------------
RCFD 8693 RCFD 8694 RCFD 8695 RCFD 8696
------------------ ----------------- ----------------- -----------------
b. Forward contracts.................... 0 0 0 0 14.b.
------------------ ----------------- ----------------- -----------------
RCFD 8697 RCFD 8698 RCFD 8699 RCFD 8700
c. Exchange-traded option contracts: ------------------ ----------------- ----------------- -----------------
(1) Written options................. 0 0 0 0 14.c.(1)
------------------ ----------------- ----------------- -----------------
RCFD 8701 RCFD 8702 RCFD 8703 RCFD 8704
------------------ ----------------- ----------------- -----------------
(2) Purchased options.............. 0 0 0 0 14.c.(2)
------------------ ----------------- ----------------- -----------------
RCFD 8705 RCFD 8706 RCFD 8707 RCFD 8708
------------------ ----------------- ----------------- -----------------
d. Over-the-counter option contracts:
------------------ ----------------- ----------------- -----------------
(1) Written options............... 0 0 0 0 14.d.(1)
------------------ ----------------- ----------------- -----------------
RCFD 8709 RCFD 8710 RCFD 8711 RCFD 8712
------------------ ----------------- ----------------- -----------------
(2) Purchased options............. 0 0 0 0 14.d.(2)
------------------ ----------------- ----------------- -----------------
RCFD 8713 RCFD 8714 RCFD 8715 RCFD 8716
------------------ ----------------- ----------------- -----------------
e. Swaps............................. 0 0 0 0 14.e.
------------------ ----------------- ----------------- -----------------
RCFD 3450 RCFD 3826 RCFD 8719 RCFD 8720
------------------ ----------------- ----------------- -----------------
15. Total gross notional amount of
derivative contracts held for trading.. 0 0 0 0 15.
------------------ ----------------- ----------------- -----------------
RCFD A126 RCFD A127 RCFD 8723 RCFD 8724
------------------ ----------------- ----------------- -----------------
16. Gross notional amount of
derivative contracts held for
purposes of trading: ------------------ ----------------- ----------------- -----------------
a. Contracts marked to market.......... 0 0 0 0 16.a
------------------ ----------------- ----------------- -----------------
RCFD 8725 RCFD 8726 RCFD 8727 RCFD 8728
------------------ ----------------- ----------------- -----------------
b. Contracts not marked to market...... 0 0 0 0 16.b
------------------ ----------------- ----------------- -----------------
RCFD 8729 RCFD 8730 RCFD 8731 RCFD 8732
------------------ ----------------- ----------------- -----------------
c. Interest rate swaps where the bank
has agreed to a fixed rate.......... 0 16.c.
------------------ ----------------- ----------------- -----------------
RCFD A589
------------------ ----------------- ----------------- -----------------
</TABLE>
25
<PAGE> 33
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-16
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 18:52
FDIC Certificate No.: 03011
SCHEDULE RC-L -- CONTINUED
<TABLE>
<CAPTION>
C462
----------------- ----------------- ----------------- -----------------
(Column A) (Column B) (Column C) (Column D)
Dollar Amounts in Thousands Interest Rate Interest Rate Interest Rate Interest Rate
- --------------------------------- Contracts Contracts Contracts Contracts
Off-balance Sheet Derivatives ----------------- ----------------- ----------------- -----------------
Position Indicators RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- --------------------------------- ----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
17. Gross fair values of
derivative contracts:
a. Contracts held for
trading:
(1) Gross positive
fair value ........... 8733 0 8734 0 8735 0 8736 0 17.a.(1)
(2) Gross negative
fair value ........... 8737 0 8738 0 8739 0 8740 0 17.a.(2)
b. Contracts held for
purposes other than
trading that are marked
to market:
(1) Gross positive
fair value ........... 8741 0 8742 0 8743 0 8744 0 17.b.(1)
(2) Gross negative
fair value ........... 8745 0 8746 0 8747 0 8748 0 17.b.(2)
c. Contracts held for
purposes other than
trading that are marked
to market:
(1) Gross positive
fair value ........... 8749 0 8750 0 8751 0 8752 0 17.c.(1)
(2) Gross negative
fair value ........... 8753 0 8754 0 8755 0 8756 0 17.c.(2)
----------------- ----------------- ----------------- -----------------
</TABLE>
<TABLE>
<CAPTION>
Memoranda Dollar Amounts in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------- -----------------
<S> <C> <C>
1.-2. Not applicable
3. Unused commitments with an original maturity exceeding one year that are reported in
Schedule RC-L, items 1.a through 1.e, above (report only the unused portions of commitments
that are fee paid or otherwise legally binding) ............................................ 3833 771,981 M.3
a. Participations in commitments with an original maturity -----------------
exceeding one year conveyed to others ............................... RCFD 3834 13,950 M.3.a.
-----------------
4. To be completed only by banks with $1 billion or more in total assets:
Standby letters of credit and foreign office guarantees (both financial and performance)
issued by non-U.S. addressees (domicile) included in Schedule RC-L, items 2 and 3, above ... 3377 0 M.4.
5. Loans to individuals for household, family, and other personal expenditures that have
been securitized and sold (with servicing retained), amounts outstanding by type of loan:
a. Loans to purchase private passenger automobiles (to be completed for the
September report only) .................................................................. 2741 0 M.5.a.
b. Credit cards and related plans (TO BE COMPLETED QUARTERLY) .............................. 2742 69,517 M.5.b.
c. All other consumer credit (including mobile home loans) (to be completed for the
September report only) .................................................................. 2743 0 M.5.c.
-----------------
</TABLE>
26
<PAGE> 34
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-1
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 18:52
FDIC Certificate No.: 03011
SCHEDULE RC-M--MEMORANDA
<TABLE>
<CAPTION>
C465
----
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------ ---- --- --- ----
<S> <C> <C> <C> <C>
1. Extensions of credit by the reporting bank to its executive officers, directors, principal
shareholders, and their related interests as of the report date:
a. Aggregate amount of all extensions of credit to all executive officers, directors,
principal shareholders, and their related interests ..................................... 6164 52 1.a.
b. Number of executive officers, directors, and principal shareholders to whom the amount
of all extensions of credit by the reporting bank (including extensions of credit to
related interests) equals or exceeds the lesser of $500,000 or 5 percent Number
of total capital as defined for this purpose in agency regulations ..... RCFD 6165 1 1.b.
2. Federal funds sold and securities purchased under agreements to resell with U.S. branches
and agencies of foreign banks(1) (included in Schedule RC, item 3) ......................... 3405 0 2.
3. Not applicable.
4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for others
(include both retained servicing and purchased servicing):
a. Mortgages serviced under a GNMA contract ................................................ 5500 0 4.a.
b. Mortgages serviced under a FHLMC contract:
(1) Serviced with recourse to servicer .................................................. 5501 0 4.b.(1)
(2) Serviced without recourse to servicer ............................................... 5502 0 4.b.(1)
c. Mortgages serviced under a FNMA contract:
(1) Serviced under a regular option contract ............................................ 5503 0 4.c.(1)
(2) Serviced under a special option contract ............................................ 5504 0 4.c.(1)
d. Mortgages serviced under other servicing contracts ...................................... 5505 0 4.d.
5. To be completed only by banks with $1 billion or more in total assets:
Customers' liability to this bank on acceptances outstanding (sum of items 5.a and 5.b.
must equal Schedule RC, item 9):
a. U.S. addressees (domicile) .............................................................. 2103 1,566 5.a.
b. Non-U.S. addressees (domicile) .......................................................... 2104 0 5.b.
6. Intangible assets:
a. Mortgage servicing assets ............................................................... 3164 0 6.a.
(1) Estimated fair value of mortgage servicing assets ...................RCFD A590 0 6.a.(1)
b. Other identifiable intangible assets:
(1) Purchased credit card relationships ................................................. 5506 0 6.b.(1)
(2) All other identifiable intangible assets ............................................ 5507 0 6.b.(1)
c. Goodwill ................................................................................ 3163 53 6.c.
d. Total (sum of items 6.1, 6.b.(1), 6.b.(2), and 6.c) (must equal Schedule RC, item 10) ... 2143 53 6.d.
e. Amount of intangible assets (included in item 6.b.(2) above) that have been grandfathered
or are otherwise qualifying for regulatory capital purposes ............................. 6442 0 6.e.
7. Mandatory convertible debt, net of common or perpetual preferred stock dedicated to
redeem the debt ............................................................................ 3295 0 7.
</TABLE>
- -------------
(1) Do not report federal funds sold and securities purchased under agreements
to resell with other commercial banks in the U.S. in this item.
27
<PAGE> 35
<TABLE>
<S> <C> <C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-18
City, State Zip: Denver, OCO 80274-8604 Printed 10/20/98 at 18:52
FDIC Certificate No.: 03011
SCHEDULE RC-M--CONTINUED
</TABLE>
<TABLE>
<CAPTION>
---------------
Dollar Amounts in Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
8. a. Other real estate owned:
(1) Direct and indirect investments in real estate ventures ............................ RCFD 5372 0 8.a.(1)
(2) All other real estate owned:
(a) Construction and land development in domestic offices .......................... RCON 5508 0 8.a.(2)(a)
(b) Farmland in domestic offices ................................................... RCON 5509 0 8.a.(2)(b)
(c) 1-4 family residential properties in domestic offices .......................... RCON 5510 1,059 8.a.(2)(c)
(d) Multifamily (5 or more) residential properties in domestic offices ............. RCON 5511 0 8.a.(2)(d)
(e) Nonfarm nonresidential properties in domestic offices .......................... RCON 5512 0 8.a.(2)(e)
(f) In foreign offices ............................................................. RCFN 5513 0 8.a.(2)(f)
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7) .......... RCFD 2150 1,059 8.a.(3)
b. Investments in unconsolidated subsidiaries and associated companies:
(1) Direct and indirect investments in real estate ventures ............................ RCFD 5374 0 8.b.(1)
(2) All other investments in unconsolidated subsidiaries and associated companies ...... RCFD 5375 0 8.b.(2)
(3) Total (sum of items 8.b.(1) and 8.b.(2) (must equal Schedule RC, item 8) ........... RCFD 2130 0 8.b.(3)
9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC,
item 23, "Perpetual preferred stock and related surplus" .................................... RCFD 3778 0 9.
10. Mutual fund and annuity sales in domestic offices during the quarter (include
proprietary, private label, and third party products):
a. Money market funds ..................................................................... RCON 6441 24,708 10.a.
b. Equity securities funds ................................................................ RCON 8427 0 10.b.
c. Debt securities funds .................................................................. RCON 8428 0 10.c.
d. Other mutual funds ..................................................................... RCON 8429 62,256 10.d.
e. Annuities .............................................................................. RCON 8430 19,139 10.e.
f. Sales of proprietary mutual funds and annuities (included in items 10.a through
10.e above) ............................................................................ RCON 8784 29,577 10.f.
11. Net unamortized realized deferred gains (losses) on off-balance sheet derivative
contracts included in assets and liabilities reported in Schedule RC ........................ RCFD A525 0 11.
12. Amount of assets netted against nondeposit liabilities and deposits in foreign offices
(other than insured branches in Puerto Rico and U.S. territories and possessions) on
the balance sheet (Schedule RC) in accordance with generally accepted accounting
principles(1) ............................................................................... RCFD A526 0 12.
13. Outstanding principal balance of loans other than 1-4 family residential mortgage
loans that are serviced for others (to be completed if this balance is more than
$10 million and exceeds ten percent of total assets) ........................................ RCFD A591 0 13.
-------------------------
</TABLE>
<TABLE>
<CAPTION>
Memorandum Dollar Amounts in Thousands RCFD Bil Mil Thou
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Reciprocal holdings of banking organizations' capital instruments
(to be completed for the December report only) .............................................. 3836 N/A M.1.
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(1) Exclude netted on-balance sheet amounts associated with off-balance sheet
derivative contracts, deferred tax assets netted against deferred tax
liabilities, and assets netted in accounting for pensions.
28
<PAGE> 36
<TABLE>
<S><C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-19
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC-N--PAST DUE AND NONACCRUAL LOANS, LEASES,
AND OTHER ASSETS
The FFIEC regards the information reported in all of Memorandum item 1, in items 1 through 10, column A, and in Memorandum items 2
through 4, column A, as confidential.
C470
----
(Column A) (Column B) (Column C)
Past due Past due 90 Nonaccrual
30 through 788 days or more
days and still and still
accruing accruing
------------------- ------------------- -------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
--------------------------- ------------------- ------------------- -------------------
1. Loans secured by real estate:
a. To U.S. addressees (domicile) ............... 1245 25,054 1246 3,483 1247 4,432 1.a.
b. To non-U.S. addressees (domicile) ........... 1248 0 1249 0 1250 0 1.b.
2. Loans to depository institutions and acceptances
of other banks:
a. To U.S. banks and other U.S. depository
institutions ................................ 5377 0 5378 0 5379 0 2.a.
b. To foreign banks ............................ 5380 0 5381 0 5382 0 2.b.
3. Loans to finance agricultural production and
other loans to farmers ........................... 1594 984 1597 563 1583 940 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) ............... 1251 31,354 1252 2,435 1253 1,273 4.a.
b. To non-U.S. addressees (domicile) ........... 1254 0 1255 0 1256 0 4.b.
5. Loans to individuals for household, family, and
other personal expenditures:
a. Credit cards and related plans .............. 5383 825 5384 0 5385 0 5.a.
b. Other (includes single payment, installment,
and all student loans) ...................... 5386 2,029 5387 1,725 5388 909 5.b.
6. Loans to foreign governments and official
institutions ..................................... 5389 0 5390 0 5391 0 6.
7. All other loans .................................. 5359 1,984 5460 228 5461 0 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile) ............... 1257 0 1258 0 1259 0 8.a.
b. Of non-U.S. addressees (domicile) ........... 1271 0 1272 0 1791 0 8.b.
9. Debt securities and other assets (exclude other
real estate owned and other repossessed assets) .. 3505 0 3506 0 3507 0 9.
====================================================================================================================================
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed portions of past due and nonaccrual loans and
leases. Report in item 10 below certain guaranteed loans and leases that have already been included in the amounts reported in
items 1 through 8.
RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
------------------- ------------------- -------------------
10. Loans and leases reported in items 1
through 8 above which are wholly or partially
guaranteed by the U.S. Government ................ 5612 0 5613 0 5614 0 10.
a. Guaranteed portion of loans and leases
included in item 10 above ................... 5615 0 5616 0 5617 0 10.a.
</TABLE>
<PAGE> 37
Legal Title of Bank: NORWEST BANK COLORADO, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-20
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC CERTIFICATE NO.: 03011
SCHEDULE RC-N -- CONTINUED
<TABLE>
<CAPTION>
C473
----------------- ----------------- -----------------
(Column A) (Column B) (Column C)
Past due Past due 90 Nonaccrual
30 through 89 days or more
days and still and still
accruing accruing
Memoranda ----------------- ----------------- -----------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
- ----------------------------------------------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C> <C>
1. Restructured loans and leases included in
Schedule RC-N, items 1 through 8, above (and not
reported in Schedule RC-C, part I, Memorandum
item 2) ......................................... 1658 0 1659 0 1661 0 M.1
2. Loans to finance commercial real estate,
construction, and land development activities
(not secured by real estate) included in
Schedule RC-N, items 4 and 7, above ............. 6558 0 6559 0 6560 0 M.2.
----------------- ----------------- -----------------
3. Loans secured by real estate in domestic offices RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
(included in Schedule RC-N, item 1, above): ----------------- ----------------- -----------------
a. Construction and land development ............ 2759 7,211 2769 585 3492 502 M.3.a.
b. Secured by farmland .......................... 3493 95 3494 0 3495 0 M.3.b
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by
1-4 family residential properties and
extended under lines of credit ............ 5398 1,770 5399 2,200 5400 3,024 M.3.c.(1)
(2) All other loans secured by 1-4 family
residential properties .................... 5401 0 5402 0 5403 0 M.3.c.(2)
d. Secured by multifamily (5 or more) residential
properties .................................... 3499 0 3500 0 3501 0 M.3.d.
e. Secured by nonfarm nonresidential properties .. 3502 15,978 3503 698 3504 906 M.3.e.
</TABLE>
<TABLE>
<CAPTION>
----------------- -----------------
(Column A) (Column B)
Past due 30 Past due 90
through 89 days days or more
----------------- -----------------
RCFD Bil Mil Thou RCFD Bil Mil Thou
- ----------------------------------------------------- ----------------- -----------------
<S> <C> <C> <C> <C>
4. Interest rate, foreign exchange rate, and other
commodity and equity contracts:
a. Book value of amounts carried as assets ...... 3522 0 3528 0 M.4.a.
b. Replacement cost of contracts with a
positive replacement cost .................... 3529 0 3530 0 M.4.b.
</TABLE>
- --------------------------------------------------------------------------------
C477
Person to whom questions about the Reports of Condition and Income should be
directed:
Laura Ewald (303) 863-4591
- --------------------------------------- ----------------------------------------
Name and Title (TEXT 8901) Telephone: Area code/phone number/
extension (TEXT 8902)
Even though Call Reports must be filed
electronically, send my bank a sample
set of paper Call Report forms for (303) 863-4605
the next quarter: Yes [ ] (RCON 9117) ----------------------------------------
FAX: Area code/phone number (TEXT 9116)
30
<PAGE> 38
<TABLE>
<S><C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-21
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC-O--OTHER DATA FOR DEPOSIT INSURANCE AND FICO ASSESSMENTS
----
C475
-----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
1. Unposted debits (see instructions):
a. Actual amount of all unposted debits .......................................................... 0030 N/A 1.a.
OR
b. Separate amount of unposted debits:
(1) Actual amount of unposted debits to demand deposits ....................................... 0031 17,175 1.b.(1)
(2) Actual amount of unposted debits to time and savings deposits(1) .......................... 0032 0 1.b.(2)
2. Unposted credits (see instructions):
a. Actual amount of all unposted credits ......................................................... 3510 N/A 2.a.
OR
b. Separate amount of unposted credits:
(1) Actual amount of unposted credits to demand deposits ...................................... 3512 2,333 2.b.(1)
(2) Actual amount of unposted credits to time and savings deposits(1) ......................... 3514 0 2.b.(2)
3. Uninvested trust funds (cash) held in bank's own trust department (not included in total
deposits in domestic offices) .................................................................... 3520 0 3.
4. Deposits of consolidated subsidiaries in domestic offices and in insured branches in Puerto
Rico and U.S. territories and possessions (not included in total deposits):
a. Demand deposits of consolidated subsidiaries .................................................. 2211 13,377 4.a.
b. Time and savings deposits(1) of consolidated subsidiaries ..................................... 2351 0 4.b.
c. Interest accrued and unpaid on deposits of consolidated subsidiaries .......................... 5514 0 4.c.
5. Deposits in insured branches in Puerto Rico and U.S. territories and possessions:
a. Demand deposits in insured branches (included in Schedule RC-E, Part II) ...................... 2229 0 5.a.
b. Time and savings deposits(1) in insured branches (included in Schedule RC-E, Part II) ......... 2383 0 5.b.
c. Interest accrued and unpaid on deposits in insured branches (included in
Schedule RC-G, item 1.b) ...................................................................... 5515 0 5.c.
6. Reserve balance actually passed through to the Federal Reserve by the reporting bank on
behalf of its respondent depository institutions that are also reflected as deposit liabilities
of the reporting bank:
a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, item 4 or 5,
column B) ..................................................................................... 2314 0 6.a.
b. Amount reflected in time and savings deposits(1) (included in Schedule RC-E, Part I,
item 4 or 5, column A or C, but not column B) ................................................. 2315 0 6.b.
7. Unamortized premiums and discounts on time and savings deposits: (1),(2)
a. Unamortized premiums .......................................................................... 5516 0 7.a.
b. Unamortized discounts ......................................................................... 5517 0 7.b.
8. To be completed by banks with "Oakar deposits."
a. Deposits purchased or acquired from other FDIC-insured institutions during the quarter
(exclude deposits purchased or acquired from foreign offices other than insured branches
in Puerto Rico and U.S. territories and possessions):
(1) Total deposits purchased or acquired from other FDIC-insured institutions during
the quarter ............................................................................... A531 0 8.a.(1)
(2) Amount of purchased or acquired deposits reported in item 8.a.(1) above attributable
to a secondary fund (i.e., BIF members report deposits attributable to SAIF; SAIF
members report deposits attributable to BIF) .............................................. A532 0 8.a.(2)
b. Total deposits sold or transferred to other FIDC-insured institutions during the quarter
(exclude sales or transfers by the reporting bank of deposits in foreign offices other than
insured branches in Puerto Rico and U.S. territories and possessions) ......................... A533 0 8.b.
- ------------
(1) For FDIC insurance and FICO assessment purposes, "time and savings deposits" consists of nontransaction accounts
and all transaction accounts other than demand deposits.
(2) Exclude core deposit intangibles.
</TABLE>
31
<PAGE> 39
<TABLE>
<S><C>
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-22
City, State Zip: Denver, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
SCHEDULE RC-O--CONTINUED
-----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
9. Deposits in lifeline accounts ................................................................... 5596 9.
10. Benefit-responsive "Depository Institution Investment Contracts" (included in total
deposits in domestic offices) ................................................................... 8432 0 10.
11. Adjustments to demand deposits in domestic offices and in insured branches in Puerto Rico
and U.S. territories and possessions reported in Schedule RC-E for certain reciprocal
demand balances:
a. Amount by which demand deposits would be reduced if the reporting bank's reciprocal
demand balances with the domestic offices of U.S. banks and savings associations
and insured branches in Puerto Rico and U.S. territories and possessions that were
reported on a gross basis in Schedule RC-E had been reported on a net basis .................. 8785 0 11.a.
b. Amount by which demand deposits would be increased if the reporting bank's reciprocal
demand balances with foreign banks and foreign offices of other U.S. banks (other than
insured branches in Puerto Rico and U.S. territories and possessions) that were reported
on a net basis in Schedule RC-E had been reported on a gross basis ........................... A181 0 11.b.
c. Amount by which demand deposits would be reduced if cash items in process of collection
were included in the calculation of the reporting bank's net reciprocal demand balances
with the domestic offices of U.S. banks and savings associations and insured branches
in Puerto Rico and U.S. territories and possessions in Schedule RC-E ......................... A182 0 11.c.
12. Amount of assets netted against deposit liabilities in domestic offices and in insured
branches in Puerto Rico and U.S. territories and possessions on the balance sheet
(Schedule RC) in accordance with generally accepted accounting principles (exclude amounts
related to reciprocal demand balances):
a. Amount of assets netted against demand deposits .............................................. A527 0 12.a.
b. Amount of assets netted against time and savings deposits .................................... A528 0 12.b.
Memoranda (to be completed each quarter except as noted) -----------------
Dollar Amounts in Thousands RCON Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
1. Total deposits in domestic offices of the bank (sum of Memorandum items 1.a.(1) and
1.b.(1) must equal Schedule RC, item 13.a):
a. Deposit accounts of $100,000 or less:
(1) Amount of deposit accounts of $100,000 or less ........................................... 2702 4,694,085 M.1.a.(1)
(2) Number of deposit accounts of $100,000 or less (to be Number
completed for the June report only) .................................. RCON 3779 N/A M.1.a.(2)
b. Deposit accounts of more than $100,000:
(1) Amount of deposit accounts of more than $100,000 ......................................... 2710 3,099,789 M.1.b.(1)
Number
(2) Number of deposit accounts of more than $100,000 ..................... RCON 2722 8,869 M.1.b.(2)
2. Estimated amount of uninsured deposits in domestic offices of the bank:
a. An estimate of your bank's uninsured deposits can be determined by multiplying the
number of deposit accounts of more than $100,000 reported in Memorandum item 1.b.(2)
above by $100,000 and subtracting the result from the amount of deposit accounts of
more than $100,000 reported in Memorandum item 1.b.(1) above.
Indicate in the appropriate box at the right whether your bank has a method or
procedure for determining a better estimate of uninsured deposits than the YES NO
estimate described above ..................................................................... 6861 X M.2.a.
b. If the box marked YES has been checked, report the estimate of uninsured deposits RCON Bil Mil Thou
determined by using your bank's method or procedure .......................................... 5597 N/A M.2.b.
3. Has the reporting institution been consolidated with a parent bank or
savings association in that parent bank's or parent savings association's
Call Report or Thrift Financial Report:
If so, report the legal title and FDIC Certificate Number of the parent bank or parent
savings association: FDIC Cert No.
TEXT A545 N/A RCON A545 N/A M.3.
</TABLE>
32
<PAGE> 40
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-23
City, State Zip: Denver, CO 80274-8604 Printed 11/2/98 at 08:09
FDIC Certificate No.: 03011
SCHEDULE RC-R--REGULATORY CAPITAL
This schedule must be completed by all banks as follows: Banks that reported
total assets of $1 billion or more in Schedule RC, item 12, for June 30, 1997,
must complete items 2 through 9 and Memoranda items 1 and 2. Banks with assets
of less than $1 billion must complete items 1 through 3 below or Schedule RC-R
in its entirety, depending on their response to item 1 below.
<TABLE>
<S> <C> <C> <C>
1. Test for determining the extent to which Schedule RC-R must be completed. To be
completed only by banks with total assets of less than $1 billion. Indicate in the C480
appropriate box at the right whether the bank has total capital greater than or YES NO
equal to eight percent of adjusted total assets ..................................... RCFD 6056 1.
For purposes of this test, adjusted total assets equals total assets less cash, U.S. Treasuries, U.S. Government
agency obligations, and 80 percent of U.S. Government-sponsored agency obligations plus the allowance for
loan and lease losses and selected off-balance sheet items as reported on Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to complete items 2 and 3 below. If the box marked
NO has been checked, the bank must complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's actual risk-based capital ratio is less than
eight percent or that the bank is not in compliance with the risk-based capital guidelines.
NOTE: All banks are required to complete items 2 and 3 below.
See optional worksheet for items 3.a through 3.f.
<CAPTION>
----------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------ ---- --- --- ----
2. Portion of qualifying limited-life capital instruments (original weighted
average maturity of at least five years) that is includible in Tier 2 capital:
a. Subordinated debt(1) and intermediate term preferred stock .............................. A515 42,000 2.a.
b. Other limited-life capital instruments .................................................. A516 0 2.b.
3. Amounts used in calculating regulatory capital ratios (report amounts determined by the bank
for its own internal regulatory capital analyses consistent with applicable capital standards):
a. (1) Tier 1 capital ...................................................................... 8274 494,541 3.a.(1)
(2) Tier 2 capital ...................................................................... 8275 107,803 3.a.(2)
(3) Tier 3 capital ...................................................................... 1395 0 3.a.(3)
b. Total risk-based capital ................................................................ 3792 602,344 3.b.
c. Excess allowance for loan and lease losses (amount that exceeds 1.25% of gross
risk-weighted assets) ................................................................... A222 9,668 3.c.
d. (1) Net risk-weighted assets (gross risk-weighted assets less excess allowance reported
in item 3.c above and all other deductions) ......................................... A223 5,254,584 3.d.(1)
(2) Market risk equivalent assets ....................................................... 1651 0 3.d.(2)
e. Maximum contractual dollar amount of recourse exposure in low level recourse transactions
(to be completed only if the bank uses the "direct reduction method" to report these
transactions in Schedule RC-R) .......................................................... 1727 0 3.e.
f. "Average total assets" (quarterly average reported in Schedule RC-K, item 9, less all
assets deducted from Tier 1 capital)(2) ................................................. A224 8,805,573 3.f.
</TABLE>
<TABLE>
<CAPTION>
(Column A) (Column B)
Items 4-9 and Memoranda items 1 and 2 are to be completed Assets Credit Equiv-
by banks that answered NO to item 1 above and Recorded alent amount
by banks with total assets of $1 billion or more. on the of Off-Balance
Balance Sheet Sheet Items(3)
----------------------- --------------------
RCFD Bil Mil Thou RCFD Bil Mil Thou
----------------------- --------------------
<S> <C> <C> <C> <C>
4. Assets and credit equivalent amounts of off-balance sheet items
assigned to the Zero percent risk category:
a. Assets recorded on the balance sheet ........................ 5163 598,186 4.a.
b. Credit equivalent amount of off-balance sheet items ......... 3796 0 4.b.
</TABLE>
- -------------
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not deduct excess allowance for loan and lease losses.
(3) Do not report in column B the risk-weighted amount of assets reported in
column A.
33
<PAGE> 41
Legal Title of Bank: Norwest Bank Colorado, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 Broadway Page RC-24
City, State Zip: Denver, CO 80274-8604 Printed 11/2/98 at 08:09
FDIC Certificate No.: 03011
SCHEDULE RC-R--CONTINUED
<TABLE>
<CAPTION>
(Column A) (Column B)
Assets Credit Equiv-
Recorded alent Amount
on the of Off-Balance
Balance Sheet Sheet Items(1)
---------------------- ----------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -------------------------------------------------------------------------- ---- --- --- ---- ---- --- --- ----
<S> <C> <C> <C> <C> <C> <C>
5. Assets and credit equivalent amounts of off-balance sheet items
assigned to the 20 percent risk category:
a. Assets recorded on the balance sheet ............................... 5165 5,042,296 5.a.
b. Credit equivalent amount of off-balance sheet items ................ 3801 1,140,153 5.b.
6. Assets and credit equivalent amounts of off-balance sheet items
assigned to the 50 percent risk category:
a. Assets recorded on the balance sheet ............................... 3802 391,549 6.a.
b. Credit equivalent amount of off-balance sheet items ................ 3803 45,896 6.b.
7. Assets and credit equivalent amounts of off-balance sheet items
assigned to the 100 percent risk category:
a. Assets recorded on the balance sheet ............................... 3804 3,423,095 7.a.
b. Credit equivalent amount of off-balance sheet items ................ 3805 385,941 7.b.
8. On-balance sheet asset values excluded from and deducted in the
calculation of the risk-based capital ratio(2) ........................ 3806 44,862 8.
9. Total assets recorded on the balance sheet (sum of items 4.a, 5.a, 6.a,
7.a, and 8, column A) (must equal Schedule RC, item 12 plus items 4.b
and 4.c) .............................................................. 3807 9,499,988 9.
</TABLE>
Memoranda
<TABLE>
<CAPTION>
----------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------ ---- --- --- ----
<S> <C> <C> <C> <C>
1. Current credit exposure across all off-balance sheet derivative contracts covered by the
risk-based capital standards ................................................................ 8764 0 M.1.
</TABLE>
<TABLE>
<CAPTION>
With a remaining maturity of
------------------------------------------------------------------------------------
(Column A) (Column B) (Column C)
One year or less Over one year Over five years
through five years
2. Notional principal amounts of -------------------------- -------------------------- --------------------------
off-balance sheet derivative RCFD Tril Bil Mil Thou RCFD Tril Bil Mil Thou RCFD Tril Bil Mil Thou
contracts(3):
<S> <C> <C> <C> <C>
a. Interest rate contracts ......... 3809 0 8766 0 8767 0 M.2.a.
b. Foreign exchange contracts ...... 3812 0 8769 0 8770 0 M.2.b.
c. Gold contracts .................. 8771 0 8772 0 8773 0 M.2.c.
d. Other precious metals contracts.. 8774 0 8775 0 8776 0 M.2.d.
e. Other commodity contracts ....... 8777 0 8778 0 8779 0 M.2.e.
f. Equity derivative contracts ..... A000 0 A001 0 A009 0 M.2.f.
</TABLE>
- -------------
(1) Do not report in column B the risk-weighted amount of assets reported in
column A.
(2) Include the difference between the fair value and the amortized cost of
available-for-sale debt securities in item 8 and report the amortized cost
of these debt securities in items 4 through 7 above. For available-for-sale
equity securities, if fair value exceeds cost, include the difference
between the fair value and the cost in item 8 and report the cost of these
equity securities in items 5 through 7 above; if cost exceeds fair value,
report the fair value of these equity securities in items 5 through 7 above
and include no amount in item 8. Item 8 also includes on-balance sheet asset
values (or portions thereof) of off-balance sheet interest rate, foreign
exchange rate, and commodity contracts and those contracts (e.g., futures
contracts) not subject to risk-based capital. Exclude from item 8 margin
accounts and accrued receivables not included in the calculation of credit
equivalent amounts of off-balance sheet derivatives as well as any portion
of the allowance for loan and lease losses in excess of the amount that may
be included in Tier 2 capital.
(3) Exclude foreign exchange contracts with an original maturity of 14 days or
less and all futures contracts.
34
<PAGE> 42
<TABLE>
<S> <C> <C>
Legal Title of Bank: NORWEST BANK COLORADO, N.A. Call Date: 9/30/98 FFIEC 031
Address: 1740 BROADWAY
City, State Zip: DENVER, CO 80274-8604 Printed 10/20/98 at 17:58
FDIC Certificate No.: 03011
</TABLE>
OPTIONAL NARRATIVE STATEMENT CONCERNING THE AMOUNTS
REPORTED IN THE REPORTS OF CONDITION AND INCOME
at close of business on September 30, 1998
NORWEST BANK COLORADO, N.A. DENVER, COLORADO
- --------------------------- ------- --------
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit a brief
narrative statement on the amounts reported in the Reports of Condition and
Income. This optional statement will be made available to the public, along
with the publicly available data in the Reports of Condition and Income, in
response to any request for individual bank report data. However, the
information reported in column A and in all of Memorandum item 1 of Schedule
RC-N is regarded as confidential and will not be released to the public. BANKS
CHOOSING TO SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT
DOES NOT CONTAIN THE NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL BANK
CUSTOMERS, REFERENCES TO THE AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN
SCHEDULE RC-N, OR ANY OTHER INFORMATION THAT THEY ARE NOT WILLING TO HAVE MADE
PUBLIC OR THAT WOULD COMPROMISE THE PRIVACY OF THEIR CUSTOMERS. Banks choosing
not to make a statement may check the "No comment" box below and should make no
entries of any kind in the space provided for the narrative statement; i.e., DO
NOT enter in this space such phrases as "No statement," "Not applicable,"
"N/A/," "No comment," and "None."
The optional statement must be entered on this sheet. The statement should not
exceed 100 words. Further, regardless of the number of words, the statement
must not exceed 750 characters, including punctuation, indentation, and
standard spacing between words and sentences. If any submission should exceed
750 characters, as defined, it will be truncated at 750
characters with no notice to the submitting bank and the truncated statement
will appear as the bank's statement both on agency computerized records and in
computer-file releases to the public.
All information furnished by the bank in the narrative statement must be
accurate and not misleading. Appropriate efforts shall be taken by the
submitting bank to ensure the statement's accuracy. The statement must be
signed, in the space provided below, by a senior officer of the bank who
thereby attests to its accuracy.
If, subsequent to the original submission, material changes are submitted for
the for the data reported in the Reports of Condition and Income, the existing
narrative statement will be deleted from the files, and from disclosure; the
bank, at its option, may replace it with a statement under signature,
appropriate to the amended data.
The optional narrative statement will appear in agency records and in release
to the public exactly as submitted (or amended as described in the preceding
paragraph) by the management of the bank (except for the truncation of
statements exceeding the 750-character limit described above). THE STATEMENT
WILL NOT BE EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY AGENCIES FOR
ACCURACY OR RELEVANCE. DISCLOSURE OF THE STATEMENT SHALL NOT SIGNIFY THAT ANY
FEDERAL SUPERVISORY AGENCY HAS VERIFIED OR CONFIRMED THE ACCURACY OF THE
INFORMATION CONTAINED THEREIN. A STATEMENT TO THIS EFFECT WILL APPEAR ON ANY
PUBLIC RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE
REPORTING BANK.
- -------------------------------------------------------------------------------
No comment [ ] (RCON 6979) C471 C472
---------------------
BANK MANAGEMENT STATEMENT (please type or print clearly:
(TEXT 6980)
/s/ LAURA L. MAES 10/15/1998
----------------------------------------- ---------------------
Signature of Executive Officer of Bank Date of Signature
35
<PAGE> 43
<TABLE>
<S> <C> <C>
Legal Title of Bank: NORWEST BANK COLORADO, N.A. Call Date: 9/30/98
Address: 17040 BROADWAY
City, State Zip: DENVER, OCO 80274-8604
FDIC Certificate No.: 03011
</TABLE>
THIS PAGE IS TO BE COMPLETED BY ALL BANKS
<TABLE>
- -----------------------------------------------------------------------------------------------
<S> <C>
NAME AND ADDRESS OF BANK OMB No. For OCC: 1557-0081
OMB No. For FDIC: 3064-0052
OMB No. For Federal Reserve: 7100-0036
Expiration Date: 3/31/2001
SPECIAL REPORT
(Dollar Amounts in Thousands)
-------------------------------------------------------
CLOSE OF BUSINESS FDIC Certificate Number
DATE C-700
9/30/1998 03011
-------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date)
- --------------------------------------------------------------------------------
The following information is required by Public Laws 90-44 and 102-242, but does
not constitute a part of the Report of Condition. With each Report of Condition,
these Laws require all banks to furnish a report of all loans or other
extensions of credit to their executive officers made since the date of the
previous Report of Condition. Data regarding individual loans or other
extensions of credit are not required. If no such loan or other extensions of
credit were made during the period, insert "none" against subitem (a). (Excludes
the first $15,000 of indebtedness of each executive officer under bank credit
card plan.) See Sections 215.2 and 215.3 of Title 12 of the Code of Federal
Regulations (Federal Reserve Board Regulation O) for the definitions of
"executive officers" and "extension of credit," respectively. Exclude loans and
other extensions of credit to directors and principal shareholders who are not
executive officers.
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C> <C> <C>
a. Number of loans made to executive officers since the previous Call Report date ........ RCFD 3561 0 a.
--------------------
b. Total dollar amount of above loans (in thousands of dollars) ......................... RCFD 3562 0 b.
--------------------
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
c. Range of interest charged on above loans -----------------------------------------------------------
(example: 9 3/4% = 9.75) .............................. RCFD 7701 0.00 % to RCFD 7702 0.00 % c.
-----------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> /s/ LAURA L. MAES <C> 10/15/1998
- -------------------------------------------------------------------------------------
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT DATE (Month, Day, Year
- -------------------------------------------------------------------------------------
</TABLE>
36
