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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) August 24, 1994
----------------------------
H. F. Ahmanson & Company
- - -------------------------------------------------------------------------------
(Exact name of registrant as specified in charter)
Delaware 1-8930 95-0479700
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(State or other jurisdiction (Commission file number) (IRS employer
of incorporation) identification no.)
4900 Rivergrade Road, Irwindale, California 91706
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (818) 960-6311
----------------------------
Not applicable
- - -------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
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Item 5. OTHER EVENTS.
On August 24, 1994, H. F. Ahmanson & Company (the "Company") executed a
Terms Agreement, including Underwriting Agreement, with Lehman Brothers Inc., CS
First Boston Corporation and Smith Barney, Inc. (the "Terms Agreement"),
relating to the issuance of $125,000,000 principal amount of 7.875% Subordinated
Notes Due September 1, 2004, previously registered by the Company on a
Registration Statement on Form S-3 (Registration No. 33-57218). Attached to
this report as exhibits for filing with the Securities and Exchange Commission
are final copies of the executed Terms Agreement, the form of Indenture and the
form of Note.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits:
1.1 Terms Agreement, including Underwriting Agreement, dated August
24, 1994, relating to 7.875% Subordinated Notes Due September 1,
2004, by and among H. F. Ahmanson & Company, Lehman Brothers
Inc., CS First Boston Corporation and Smith Barney, Inc.
4.1 Form of Indenture dated as of August 24, 1994 from H. F. Ahmanson
& Company to The First National Bank of Chicago, Trustee.
4.2 Form of 7.875% Subordinated Note Due September 1, 2004.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: August 25, 1994
H.F. AHMANSON & COMPANY
By: /s/Kevin W. Twomey
--------------------------------
Executive Vice President and
Chief Financial Officer
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EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE
- - ----------- ----------- ------------
<C> <S> <C>
1.1 Terms Agreement, including Underwriting Agreement, dated August
24, 1994, relating to 7.875% Subordinated Notes Due September 1,
2004, by and among H. F. Ahmanson & Company, Lehman Brothers
Inc., CS First Boston Corporation and Smith Barney, Inc.
4.1 Form of Indenture dated as of August 24, 1994 from H. F. Ahmanson
& Company to The First National Bank of Chicago, Trustee.
4.2 Form of 7.875% Subordinated Note Due September 1, 2004.
</TABLE>
4
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H. F. AHMANSON & COMPANY
("Issuer")
Subordinated Debt Securities
Terms Agreement
---------------
August 24, 1994
H. F. Ahmanson & Company
4900 Rivergrade Road
Irwindale, California 91706
Attention: Chief Financial Officer
The several Underwriters named in Schedule A hereto agree to purchase
the following principal amount of Designated Securities on and subject to the
terms and conditions of the Underwriting Agreement attached hereto
("Underwriting Agreement").
TITLE: 7.875% Subordinated Notes due September 1, 2004.
AGGREGATE PRINCIPAL AMOUNT: $125,000,000.
PRICE TO PUBLIC: 99.534% of the principal amount of the Designated
Securities, plus accrued interest, if any, from August 31, 1994.
PURCHASE PRICE BY UNDERWRITERS: 98.934% of the principal amount of the
Designated Securities.
DELIVERY OF DESIGNATED SECURITIES: The Designated Securities shall be
represented by one or more global certificates that will be deposited with
The Depository Trust Company ("DTC") at least twenty-four hours before the
closing (as specified below) and registered in the name of DTC's nominee.
Ownership interests in the Designated Securities shall be delivered by or
on behalf of the Issuer to the Underwriters in book-entry form through the
book-entry facilities of DTC for the respective accounts of the
Underwriters or their nominees that are participants in DTC, with any
transfer taxes payable in connection with the transfer of the Designated
Securities to the Underwriters duly paid, against payment by the
Underwriters of the purchase price therefor.
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SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: Immediately available
funds.
INDENTURE: Indenture dated as of August 24, 1994, between the Issuer and
The First National Bank of Chicago, as Trustee.
MATURITY: September 1, 2004.
INTEREST RATE: 7.875% per annum.
INTEREST PAYMENT DATES: September 1 and March 1 of each year, commencing
March 1, 1995.
REDEMPTION PROVISIONS: None.
SINKING FUND PROVISIONS: None.
DEFEASANCE PROVISIONS: All provisions described in the Prospectus are
applicable.
CLOSING: 7:00 A.M., August 31, 1994, at Sullivan & Cromwell, 444 South
Flower Street, Los Angeles, California.
NAMES AND ADDRESS OF THE UNDERWRITERS:
Lehman Brothers Inc.
CS First Boston Corporation
Smith Barney Inc.
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Lehman Brothers Inc. will act for the several Underwriters in
connection with this financing, and any action under this Agreement taken by
Lehman Brothers Inc. will be binding upon all the Underwriters.
The respective amounts of the Designated Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
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Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.
Very truly yours,
LEHMAN BROTHERS INC.
CS FIRST BOSTON CORPORATION
SMITH BARNEY INC.
By Lehman Brothers Inc.
By _____________________________
Herbert McDade III
Managing Director
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SCHEDULE A
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
- - ----------------------------- ------------
<S> <C>
Lehman Brothers Inc............... $ 43,000,000
CS First Boston Corporation....... $ 41,000,000
Smith Barney Inc.................. $ 41,000,000
------------
Total................... $125,000,000
============
</TABLE>
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To: Lehman Brothers Inc.
CS First Boston Corporation
Smith Barney Inc.
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
We accept the offer contained in the Terms Agreement, dated August 24,
1994, relating to $125,000,000 aggregate principal amount of 7.875% Subordinated
Notes due September 1, 2004. We also confirm that, to the best of our knowledge
after reasonable investigation, the representations and warranties of the
undersigned in the Underwriting Agreement signed by the Issuer and attached
hereto ("Underwriting Agreement") are true and correct, no stop order suspending
the effectiveness of the Registration Statement (as defined in the Underwriting
Agreement) or of any part thereof has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the undersigned, are
contemplated by the Securities and Exchange Commission and, subsequent to the
respective dates of the most recent financial statements in the Prospectus (as
defined in the Underwriting Agreement), there has been no material adverse
change in the financial position or results of operations of the undersigned and
its subsidiaries except as set forth in or contemplated by the Prospectus.
Very truly yours,
H. F. AHMANSON & COMPANY
By: _____________________________
Anne-Drue Anderson
First Vice President
and Treasurer
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H. F. AHMANSON & COMPANY
Subordinated Debt Securities
Underwriting Agreement
August 24, 1994
To the Representatives of the
several Underwriters named
in the respective Terms
Agreements hereinafter described
Dear Sirs:
1. Introductory. H. F. Ahmanson & Company, a Delaware corporation
(the "Issuer"), proposes to enter into one or more Terms Agreements (each, a
"Terms Agreement") in the form of Annex I hereto with such additions and
deletions as the parties thereto may determine, and subject to the terms and
conditions stated herein and therein, to issue and sell to the Underwriters
named in the applicable Terms Agreement (such firms constituting the
"Underwriters" with respect to such Terms Agreement and the Securities specified
therein), the aggregate principal amount of Subordinated Debt Securities (the
"Securities"), of the Issuer specified in such Terms Agreement (with respect to
such Terms Agreement, the "Designated Securities").
The terms of any particular issuance of Designated Securities shall be
as specified in the Terms Agreement relating thereto and in or pursuant to the
indenture ("Indenture") specified in the Terms Agreement.
Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities for whom firms designated as
representatives of the Underwriters of such Securities in the Terms Agreement
relating thereto will act as Representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as the sole Representative
of the Underwriters and to Underwriters acting without any firm being designated
as their Representative. This Underwriting Agreement shall not be construed as
an obligation on the part of the Issuer to sell any of the Securities or as an
obligation of any of the Underwriters to purchase the Securities. The
obligation of the Issuer to issue and sell any of the Securities and the
obligation of any of the
<PAGE>
Underwriters to purchase any of the Securities shall be evidenced by the Terms
Agreement with respect to the Designated Securities specified therein. Each
Terms Agreement shall specify the title of such Designated Securities, the
aggregate principal amount of such Designated Securities, the price to the
public of such Designated Securities, the purchase price to the Underwriters of
such Designated Securities, the names of the Underwriters of such Designated
Securities and the Representatives of such Underwriters and the principal amount
of such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Terms Agreement shall also specify (to the extent not set
forth in the registration statement and prospectus related thereto) the terms of
such Designated Securities. A Terms Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or other rapid transmission device
designed to produce a written record of communications transmitted.
2. Representations and Warranties of the Issuer. The Issuer
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The registration statement (No. 33-57218) relating to the
Securities (including a prospectus which, as supplemented, shall be used in
connection with sales of the Securities) has been filed with the Securities
and Exchange Commission ("Commission"); and such registration statement and
each post-effective amendment thereto have been declared effective by the
Commission. The registration statement relating to Securities and the
Designated Securities in any offering hereunder, as amended at the time of
any Terms Agreement referred to in Section 1 and Section 3, is hereinafter
referred to as the "Registration Statement," and the prospectus as
supplemented as contemplated by Section 1 and Section 3 to reflect the
terms of the Designated Securities and terms of offering thereof, including
all material incorporated by reference therein, is hereinafter referred to
as the "Prospectus."
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all respects to the requirements of the
Securities Act of 1933 ("Act") and the rules and regulations of the
Commission ("Rules and Regulations") and did not
2
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include any untrue statement of a material fact or omit to state any
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, and on the date of each Terms Agreement referred to
in Section 1 and Section 3, the Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and the Rules
and Regulations and neither of such documents will include any untrue
statement of a material fact or omit to state any 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, except
that the foregoing does not apply to statements in or omissions from any
such documents based upon written information furnished to the Issuer by
any Underwriter specifically for use therein.
3. Purchase and Offering. Upon the execution of the Terms Agreement
applicable to any Designated Securities and authorization by the Representatives
of the release of such Designated Securities, the several Underwriters propose
to offer the Designated Securities for sale upon the terms and conditions set
forth in the Prospectus. The obligations of the Underwriters to purchase the
Designated Securities shall be several and not joint. Unless otherwise
specified in the Terms Agreement, certificates representing Designated
Securities to be purchased by each Underwriter pursuant to a Terms Agreement
relating thereto, in definitive form to the extent practicable, and in such
authorized denominations and registered in such names as the Underwriters
request upon at least two full business days' prior notice to the Issuer, shall
be delivered by or on behalf of the Issuer to the Representatives for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by certified or official bank check or
checks payable to the order of the Issuer in the funds specified in such Terms
Agreement, all at the place and time and date specified in such Terms Agreement
or at such other place and time and date as the Representatives and the Issuer
may agree upon in writing, such time and date being herein called a "Closing
Date" for such Designated Securities.
4. Covenants of the Issuer. The Issuer agrees with the several
Underwriters in connection with each offering of the Designated Securities:
(a) The Issuer will prepare the Prospectus and file such Prospectus
pursuant to Rule 424(b) under the
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Act not later than the Commission's close of business on the second
business day following the execution and delivery of each Terms Agreement,
or, if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act, and will advise the Representatives promptly of such filing;
the Issuer will file timely all reports and any definitive proxy or
information statements required to be filed by the Issuer with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 ("Exchange Act") for so long as the delivery of a
prospectus is required in connection with the offering of the Designated
Securities.
(b) The Issuer will advise the Representatives promptly of any
amendment or supplementation of the Registration Statement or the
Prospectus and will not effect such amendment or supplementation without
the consent of the Representatives (which consent shall not be unreasonably
withheld, but shall not be deemed a waiver of any condition set forth in
Section 5 below); the Issuer will also advise the Representatives of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof, and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Designated
Securities is required to be delivered under the Act, any event occurs 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 to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Registration Statement or
the Prospectus to comply with the Act, the Issuer promptly will prepare and
file with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
The Underwriters agree to use the Prospectus, as so amended and
supplemented, in lieu of the Prospectus theretofore in effect.
(d) Not later than 18 months after the date of each Terms Agreement,
the Issuer will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after
4
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the date of such Terms Agreement which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Issuer will furnish to the Representatives copies of the
Registration Statement, including all exhibits, each preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as are
reasonably requested.
(f) The Issuer will arrange for the qualification of the Designated
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions within the United States as
the Representatives designate and will continue such qualifications in
effect so long as required for the distribution of the Designated
Securities as contemplated by this Agreement; provided that the Issuer
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction.
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to each Representative (i) as soon as
available, a copy of any report or definitive proxy statement of the Issuer
filed with the Commission under the Exchange Act and (ii) subject to
applicable law, from time to time, such other information concerning the
Issuer as the Representatives may reasonably request. To the extent such
information is specifically designated by the Issuer as confidential and is
not otherwise available to the public, you will not disseminate such
information unless required to do so by applicable law or legal or
administrative process.
(h) The Issuer will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Issuer'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 and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) all expenses in connection with the
qualification of the Designated Securities for offering and sale under
state securities laws as provided in Section 4(f) hereof, including the
fees and disbursements of counsel for the Underwriters
5
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in connection with such qualification and in connection with the Blue Sky
and legal investment surveys; (iii) any fees charged by securities rating
services for rating the Designated Securities at the request of the Issuer;
(iv) the filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Designated Securities; (v) the cost of preparing note certificates; (vi)
the cost and charges of any depositary, transfer agent or registrar; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder and under the applicable Terms Agreement which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, Section 7 and Section 9
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any
Designated Securities by them and any advertising expenses connected with
any offers they may make.
(i) Without your prior written consent, the Issuer will not, during
the period beginning on the date of the Terms Agreement and continuing to
and including the last Closing Date for such Designated Securities or, if
later, the date of expiration of any option granted to the Underwriters by
the Issuer to purchase Designated Securities, offer, sell or agree to sell
or otherwise dispose of any securities of the Issuer which are
substantially similar to the Designated Securities without the prior
written consent of the Representatives.
5. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters of any Designated Securities under the Terms
Agreement relating to such Designated Securities shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Issuer in or incorporated in the Terms
Agreement are, at and as of the relevant Closing Date, true and correct, the
condition that the Issuer shall have performed all of its obligations hereunder
and under the applicable Terms Agreement 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
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the Rules and Regulations and in accordance with Section 4(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and remain in effect and no
proceeding for that purpose shall have been initiated or threatened by the
Commission;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Closing Date, with
respect to the incorporation of the Issuer, the validity of the Designated
Securities, the Registration Statement, the Prospectus, and other related
matters as the Representatives 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) The Representatives shall have received the written opinion or
opinions, dated such Closing Date, in form and substance satisfactory to
the Representatives of (A) Gibson, Dunn & Crutcher, counsel for the Issuer
(as to paragraphs (i), (ii), (vi), (vii) and (viii) below) and (B) Tim S.
Glassett, Assistant General Counsel of the Issuer, or other counsel
acceptable to you (as to paragraphs (iii), (iv) and (v) below) to the
effect that:
(i) The Issuer has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, and Home Savings of America, FSB ("Home Savings") has
been duly organized and is validly existing as a savings bank in good
standing under the laws of the United States of America, each with all
necessary corporate power to own its properties and conduct its
business as described in the Prospectus, and Home Savings is a member
of the Federal Home Loan Bank of San Francisco; and the savings
accounts of depositors in Home Savings are insured by the Federal
Deposit Insurance Corporation ("FDIC") in accordance with the law and
the rules and regulations of the FDIC;
(ii) The Indenture has been duly authorized, executed and
delivered by the Issuer; the Designated Securities have been duly
authorized, executed and delivered by the Issuer and conform in all
material respects to the description thereof contained in the
Prospectus; and the
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Indenture and the Designated Securities, assuming the Designated
Securities are authenticated by the Trustee as contemplated by the
Indenture, constitute valid and legally binding obligations of the
Issuer 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 such enforcement is considered in a proceeding
at law or in equity;
(iii) Each of the Issuer and Home Savings has been duly qualified
as a 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, 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;
(iv) To the best of such counsel's knowledge, (A) the Issuer and
Home Savings are conducting their respective businesses in compliance
in all material respects with all applicable material Federal and
State laws and regulations (including without limitation all
regulations and orders of the Commission and FDIC), and (B) neither
the Issuer nor Home Savings is charged with or under investigation
with respect to any material violation of any such laws or regulations
or the subject of any pending or threatened material adverse
proceedings by any such regulatory authority having jurisdiction over
its business or operations;
(v) This Agreement and the Terms Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Issuer;
(vi) The execution, delivery and performance by the Issuer of the
Indenture, this Agreement and the Terms Agreement with respect to the
Designated Securities and the issuance and sale of the Designated
Securities and compliance by the Issuer with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under (A) any statute,
rule, regulation or order
8
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known to such counsel of any governmental agency or body or any court
having jurisdiction over the Issuer or Home Savings or any of their
properties (provided that such counsel need not express any opinion in
this clause (A) with respect to the antifraud provisions of the
Federal securities laws, rules and regulations that are expressly
considered in other sections of its opinion, or with respect to state
securities or blue sky laws), (B) any agreement or instrument listed
as material to the Issuer or Home Savings on the officer's certificate
annexed to such opinion, to which the Issuer or Home Savings is a
party or by which the Issuer or Home Savings is bound or to which any
of the properties of the Issuer or Home Savings is subject, or (C) the
Certificate of Incorporation or Bylaws of the Issuer or Charter or
Bylaws of Home Savings;
(vii) 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 by the Issuer of the Designated
Securities or the consummation by the Issuer of the other transactions
contemplated by this Agreement and the Terms Agreement with respect to
the Designated Securities, except the registration of the Designated
Securities under the Act and such consents, approvals, authorizations,
registrations or qualifications as have been obtained or may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Designated Securities by the
Underwriters of the Designated Securities; and
(viii) The Registration Statement and Prospectus and any further
amendments and supplements thereto made by the Issuer prior to such
Closing Date (other than the financial statements and related
schedules and other financial and statistical data therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; the description in the Prospectus under the captions "H.
F. Ahmanson & Company" and "Description of Debt Securities", together
with the description in the Prospectus Supplement under the captions
"Recent Developments -- Regulatory
9
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Developments" and "Description of the Notes", of statutes, rules,
regulations, legal and governmental proceedings and contracts and
other documents described therein are accurate in all material
respects and fairly present the information required to be shown.
You shall have also received from Gibson, Dunn & Crutcher a written
statement, dated the Closing Date, in the standard form of such counsel, to the
effect that, based on their participation in the preparation thereof, no facts
have come to the attention of such counsel that would lead them to believe that,
as of its effective date, the Registration Statement or any further amendment or
supplement thereto made by the Issuer prior to such Closing Date (other than the
financial statements and related schedules and other financial or statistical
data therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus or any further amendment or supplement
thereto made by the Issuer prior to such Closing Date (other than the financial
statements and related schedules and other financial or statistical data
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading or that as of such Closing Date, the Registration Statement
or the Prospectus or any further amendment or supplement thereto made by the
Issuer prior to such Closing Date (other than the financial statements and
related schedules and other financial or statistical data therein, as to which
such counsel need express no opinion) contains an untrue statement of a material
fact or omits 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 are made, not misleading; provided that such counsel may state
that the limitations inherent in their examination and the knowledge available
to them are such that they are unable to assume, and do not assume, any
responsibility for the accuracy, completeness or fairness of such statements
except for those statements under the captions "H. F. Ahmanson & Company" and
"Description of Debt Securities" in the Prospectus and "Recent Developments --
Regulatory Developments" and "Description of the Notes" in the Prospectus
Supplement insofar as statutes, rules, regulations, contracts or other documents
are described therein; and such counsel does not
10
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know of any legal or governmental proceedings required to be described in the
Prospectus which are not described as required, 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 Prospectus which are
not filed or incorporated by reference or described as required;
(d) At each Closing Date, KPMG Peat Marwick shall have furnished to
the Representatives a letter or letters, dated the respective dates of
delivery thereof, each in form and substance satisfactory to the
Representatives, to the effect set forth in Annex II hereof;
(e) Subsequent to the execution and delivery of the Terms Agreement,
there shall not have occurred (i) any change, or any development involving
a prospective change, in or affecting particularly the business or
properties of the Issuer or its subsidiaries which, in the judgment of the
Representatives, materially impairs the investment quality of the
Designated Securities; (ii) any downgrading in the rating of any debt
securities or preferred stock of the Issuer by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act); (iii) neither Standard and Poor's Corporation nor Moody's
Investors Service, Inc. shall have publicly announced that it has under
surveillance or review, with possible negative implications, its ratings of
any of the Issuer's debt securities or preferred stock; (iv) a suspension
or material limitation in trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Issuer on
any exchange or in the over-the-counter market; (v) a general moratorium on
commercial banking activities in New York or California declared by either
Federal or applicable state authorities; or (vi) the outbreak or escalation
of major 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 Clauses (i) or (vi) in the judgment of the
Representatives makes it impracticable to proceed with the public offering
or the delivery of the Designated Securities being delivered on such
Closing Date on the
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terms and in the manner contemplated in the Prospectus; and
(f) The Issuer shall have furnished or caused to be furnished to the
Representatives at such Closing Date certificates of the President or any
Vice President and a principal financial or accounting officer of the
Issuer which shall state that to the best of their knowledge after
reasonable investigation in their capacity as officers of the Issuer (i)
the representations and warranties of the Issuer herein and in the Terms
Agreement with respect to the Designated Securities at and as of such
Closing Date are true and correct, (ii) the Issuer has complied in all
material respects with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder and under the applicable Terms
Agreement at or prior to such Closing Date, (iii) the matters set forth in
subsection (a) (regarding a suspension of effectiveness) of this Section
are true and correct and (iv) there has been no change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Issuer or its subsidiaries which materially impairs
the investment quality of the Designated Securities.
6. Conditions to the Obligations of the Issuer. The obligation of
the Issuer to issue and sell any Designated Securities under a Terms Agreement
shall be subject to (i) the performance by the Underwriters in all material
respects of their respective obligations hereunder; and (ii) the condition
precedent that prior to the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Issuer or any Underwriter, contemplated by the Commission.
7. Indemnification and Contribution. (a) The Issuer will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter 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 the
Registration Statement or the Prospectus, or any amendment or supplement thereto
or any related preliminary prospectus supplement, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
12
<PAGE>
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, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred as such expenses are incurred by such Underwriter in connection with
investigating or defending any such action or claim, such amounts to be repaid
by such Underwriter if and to the extent it shall be determined ultimately that
such Underwriter was not entitled to such amounts under the provisions of this
Agreement; provided, however, that the Issuer 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 the Registration Statement or the Prospectus or any
such amendment or supplement or any related preliminary prospectus supplement in
reliance upon and in conformity with written information furnished to the Issuer
by any Underwriter through the Representatives expressly for use therein; and
provided, further, that the Issuer shall not be liable to any Underwriter under
the indemnity agreement in this subsection (a) with respect to any untrue
statement or omission in any preliminary prospectus supplement to the extent
that any such loss, claim, damage or liability of such Underwriter results from
the fact such Underwriter sold Designated Securities to a person to whom 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) or of the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference) in any case where such delivery is required if the Issuer 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 supplement
or the Prospectus, as the case may be, which was corrected in the Prospectus (or
the Prospectus as amended or supplemented).
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Issuer against any losses, claims, damages or liabilities to
which the Issuer 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 the Registration Statement or the Prospectus, or any
amendment or supplement thereto or any preliminary prospectus supplement, or
arise out of or are based upon the omission or alleged omission to state therein
a material
13
<PAGE>
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, 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 supplement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Issuer by such Underwriter expressly for use therein, and will reimburse
the Issuer for any legal or other expenses reasonably incurred as such expenses
are incurred by the Issuer in connection with investigating or defending any
such action or claim, such amounts to be repaid by the Issuer if and to the
extent it shall be determined ultimately that the Issuer was not entitled to
such amounts under the provisions of this Agreement.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection, except to the extent
that the indemnifying party is prejudiced as a result of such failure. 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.
(d) If the indemnification provided for in this Section 7 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
14
<PAGE>
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 Issuer on the one hand and the Underwriters on
the other from the offering of the Designated 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 Issuer 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
Issuer 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 Issuer as set forth in the table on the
cover page of the Prospectus bear to the total underwriting discounts and
commissions received by the Underwriters 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 Issuer on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Issuer 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 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 Designated Securities
15
<PAGE>
underwritten by it and distributed to the public was 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 Issuer under this Section 7 shall be in
addition to any liability which the Issuer 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 7 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 Issuer and to each
person, if any, who controls the Issuer within the meaning of the Act.
8. Default of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the Designated Securities which it has agreed to
purchase under a Terms Agreement at a Closing Date, the Representatives shall
use reasonable efforts to arrange for another party or other parties to purchase
such Designated Securities, or the Representatives may in their discretion
purchase such Designated Securities, on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Issuer
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed periods, the Representatives notify the Issuer that
the Representatives have so arranged for the purchase of such Designated
Securities, or the Issuer notifies the Representatives that it has so arranged
for the purchase of such Designated Securities, the Representatives or the
Issuer shall have the right to postpone such Closing Date 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 Issuer agrees to file promptly any amendments
to the
16
<PAGE>
Registration Statement or the Prospectus which in the Representatives'
reasonable 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 made a party to this
Agreement or a Terms Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Issuer as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remain unpurchased
does not exceed one-eleventh of the aggregate principal amount of all the
Designated Securities to be purchased at such Closing Date, then the Issuer
shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Designated Securities which such Underwriter agreed to
purchase hereunder on such Closing Date and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase
hereunder) of the Designated 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 Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Issuer as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remain unpurchased
exceeds one-eleventh of the aggregate principal amount of Designated Securities
to be purchased on such Closing Date, or if the Issuer shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Designated Securities of a defaulting Underwriter or Underwriters,
then this Agreement and the Terms Agreement with respect to the Designated
Securities and any obligation of the Underwriters to purchase and of the Issuer
to sell the Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Issuer, except for the
expenses to be borne by the Issuer and the Underwriters as provided in the first
sentence of Section 4(h) hereof and the indemnity and contribution agreements in
Section 7 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
17
<PAGE>
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuer and the several Underwriters, as set forth in this
Agreement and the Terms Agreement with respect to the Designated Securities or
made by or on behalf of them, respectively, pursuant to this Agreement and the
Terms Agreement with respect to the Designated Securities, 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 Issuer, or any officer or director or
controlling person of the Issuer, and shall survive delivery of and payment for
the Designated Securities.
If this Agreement shall be terminated pursuant to Section 6(i),
Section 5(e)(iii), (iv) (only with regards to a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
or the setting of minimum prices for trading on such exchange), (v) or (vi) or
Section 8 hereof, the Issuer shall not then be under any liability to any
Underwriter except as provided in the first sentence of Section 4(h) and Section
7 hereof; but, if for any other reason the Designated Securities are not
delivered by or on behalf of the Issuer as provided in the applicable Terms
Agreement, the Issuer will reimburse the Underwriters for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Designated Securities,
but the Issuer shall then be under no further liability to any Underwriter
except as provided in Section 4(h) and Section 7 hereof.
10. Notices. In all dealings under a Terms Agreement, the
Representatives shall act on behalf of each of the Underwriters of such
Designated Securities, and the parties to any Terms Agreement shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by the Representatives on behalf of the
Underwriters.
All statements, requests, notices, and agreements hereunder and under
any Terms Agreement shall be in writing or by telegram if promptly confirmed in
writing, and if to the Underwriters shall be sufficient in all respects if
delivered or sent by registered mail to the Representatives at their address set
forth in the applicable Terms Agreement; and if to the Issuer shall be
sufficient in all
18
<PAGE>
respects if delivered or sent by registered mail to 4900 Rivergrade Road,
Irwindale, California 91706, Attention: General Counsel; provided, however,
that the Representatives agree to use reasonable efforts to advise orally
Charles R. Rinehart, Kevin M. Twomey or George G. Gregory of the mailing or
transmission of any such notice concurrently with such mailing or transmission,
but the failure to advise any of the foregoing individuals of any such notice
shall not invalidate such notice; and provided, further, that any notice to an
Underwriter pursuant to Section 7(c) hereof shall be delivered or sent by
registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Issuer by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
11. Successors. This Agreement shall be binding upon and inure
solely to the benefit of, the Underwriters of Designated Securities, the Issuer
and, to the extent provided in Section 7 and Section 9 hereof, the officers and
directors of the Issuer and each person who controls the Issuer or any such
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 Designated Securities from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
12. Time. 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.
13. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
19
<PAGE>
14. Counterparts. This Agreement may be executed 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.
Very truly yours,
H. F. AHMANSON & COMPANY
By: _______________________________
Name:
Title:
20
<PAGE>
ANNEX II
Pursuant to Section 5(d) of the Underwriting Agreement, the accountants
shall furnish a letter or letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Issuer and its subsidiaries within the meaning of the Act and the Rules
and Regulations;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable,
prospective financial statements 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 Rules and Regulations; and 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 Issuer for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the representatives of the
Underwriters (the "Representatives");
(iii) On the basis of limited procedures, not constituting an audit 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 Issuer and its subsidiaries, inspection of the minute
books of the Issuer 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 Issuer 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) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included
<PAGE>
or incorporated by reference in the Issuer'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 as it applies to Form 10-Q and the
Rules and Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
the basis for the audited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Issuer's Annual Report on
Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Issuer's Annual Report on Form 10-K for the most recent fiscal year;
(C) 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 Rules and Regulations or
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(D) 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 Issuer and its
subsidiaries, or any decreases in consolidated
2
<PAGE>
stockholders' equity, total deposits or total assets, or changes in
allowance for possible loan losses or other items specified by the
Representatives, or any increases in Federal Home Loan Bank advances
or any other 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
(E) 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 (D) there were any decreases
in consolidated net interest income, consolidated noninterest income
or 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
(iv) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraph (iii) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the
general accounting records of the Issuer 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 Issuer
3
<PAGE>
and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as amended or supplemented in relation to the applicable Designated
Securities at the Closing Date for such Designated Securities.
4
<PAGE>
ANNEX I
H. F. AHMANSON & COMPANY
Subordinated Debt Securities
Terms Agreement
August __, 1994
H. F. Ahmanson & Company
4900 Rivergrade Road
Irwindale, California 91706
Attention: Chief Financial Officer
The undersigned agrees to purchase the following principal amount of
Designated Securities on and subject to the terms and conditions of the
Underwriting Agreement attached hereto ("Underwriting Agreement").
TITLE:
AGGREGATE PRINCIPAL AMOUNT:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
DELIVERY OF DESIGNATED SECURITIES:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
INDENTURE:
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
DEFEASANCE PROVISIONS:
<PAGE>
CLOSING:
NAMES AND ADDRESS OF THE UNDERWRITERS:
Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.
Very truly yours,
By _________________________
Name:
Title:
2
<PAGE>
To:
We accept the offer contained in the Terms Agreement, dated August __,
1994, relating to $__________ aggregate principal amount of ___% Subordinated
Notes due __________. We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement signed by the Issuer and attached hereto
("Underwriting Agreement") are true and correct, no stop order suspending the
effectiveness of the Registration Statement (as defined in the Underwriting
Agreement) or of any part thereof has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the undersigned, are
contemplated by the Securities and Exchange Commission and, subsequent to the
respective dates of the most recent financial statements in the Prospectus (as
defined in the Underwriting Agreement), there has been no material adverse
change in the financial position or results of operations of the undersigned and
its subsidiaries except as set forth in or contemplated by the Prospectus.
Very truly yours,
H. F. AHMANSON & COMPANY
By: _______________________
Name:
Title:
<PAGE>
H. F. AHMANSON & COMPANY
TO
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
----------
INDENTURE
Dated as of August 24, 1994
----------
SUBORDINATED DEBT SECURITIES
<PAGE>
Table Of Contents
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
Section 101. Definitions............................. 1
Section 102. Compliance Certificates and Opinions.... 11
Section 103. Form of Documents Delivered to Trustee.. 11
Section 104. Acts of Holders; Record Dates........... 12
Section 105. Notices, Etc., to Trustee and Company... 14
Section 106. Notice to Holders; Waiver............... 15
Section 107. Conflict with Trust Indenture Act....... 16
Section 108. Effect of Headings and Table of Contents 16
Section 109. Successors and Assigns.................. 16
Section 110. Separability Clause..................... 16
Section 111. Benefits of Indenture................... 16
Section 112. Governing Law........................... 16
Section 113. Legal Holidays.......................... 17
</TABLE>
ARTICLE TWO
SECURITY FORMS
<TABLE>
<CAPTION>
<S> <C> <C>
Section 201. Forms Generally..................... 17
Section 202. Form of Face of Security............ 18
Section 203. Form of Reverse of Security......... 21
Section 204. Form of Legend for Global Securities 26
Section 205. Form of Coupon...................... 27
Section 206. Form of Trustee's Certificate of
Authentication.................... 28
</TABLE>
ARTICLE THREE
THE SECURITIES
<TABLE>
<CAPTION>
<S> <C> <C>
Section 301. Amount Unlimited; Issuable in Series... 28
Section 302. Denominations.......................... 32
Section 303. Execution, Authentication, Delivery and
Dating............................... 32
Section 304. Temporary Securities................... 34
Section 305. Registration, Registration of Transfer
and Exchange......................... 36
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities or Coupons................ 40
Section 307. Payment of Interest; Interest Rights
Preserved............................ 41
Section 308. Persons Deemed Owners.................. 43
</TABLE>
<PAGE>
Table of Contents
(continued)
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
Section 309. Cancellation........................... 44
Section 310. Computation of Interest................ 44
Section 311. Certificate by a Person Entitled to
Delivery of a Bearer Security........ 44
</TABLE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<TABLE>
<CAPTION>
<S> <C> <C>
Section 401. Satisfaction and Discharge of
Indenture............................ 45
Section 402. Application of Trust Money............. 46
</TABLE>
ARTICLE FIVE
REMEDIES
<TABLE>
<CAPTION>
<S> <C> <C>
Section 501. Events of Default...................... 47
Section 502. Acceleration of Maturity; Rescission
and Annulment........................ 49
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee........... 50
Section 504. Trustee May File Proofs of Claim....... 51
Section 505. Trustee May Enforce Claims Without
Possession of Securities............. 51
Section 506. Application of Money Collected......... 52
Section 507. Limitation on Suits.................... 52
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest and to Convert............... 53
Section 509. Restoration of Rights and Remedies..... 54
Section 510. Rights and Remedies Cumulative......... 54
Section 511. Delay or Omission Not Waiver........... 54
Section 512. Control by Holders..................... 54
Section 513. Waiver of Past Defaults................ 55
Section 514. Undertaking for Costs.................. 55
Section 515. Waiver of Usury, Stay or Extension
Laws................................. 55
</TABLE>
ARTICLE SIX
THE TRUSTEE
<TABLE>
<CAPTION>
<S> <C> <C>
Section 601. Certain Duties and Responsibilities.... 56
Section 602. Notice of Defaults..................... 57
Section 603. Certain Rights of Trustee.............. 57
Section 604. Not Responsible for Recitals or
</TABLE>
ii
<PAGE>
Table of Contents
(continued)
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Issuance of Securities................. 58
Section 605. May Hold Securities or Coupons......... 59
Section 606. Money Held in Trust.................... 59
Section 607. Compensation and Reimbursement......... 59
Section 608. Disqualification; Conflicting Interests 60
Section 609. Corporate Trustee Required; Eligibility 60
Section 610. Resignation and Removal; Appointment
of Successor......................... 61
Section 611. Acceptance of Appointment by Successor. 63
Section 612. Merger, Conversion, Consolidation
or Succession to Business............ 64
Section 613. Preferential Collection of Claims
Against Company...................... 64
Section 614. Appointment of Authenticating Agent.... 65
</TABLE>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
<TABLE>
<CAPTION>
<S> <C> <C>
Section 701. Company to Furnish Trustee Names
and Addresses of Holders............ 66
Section 702. Preservation of Information;
Communications to Registered
Holders............................. 67
Section 703. Reports by Trustee..................... 67
Section 704. Reports by Company..................... 68
</TABLE>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
<TABLE>
<CAPTION>
<S> <C> <C>
Section 801. Company May Consolidate, Etc., Only on
Certain Terms........................ 69
Section 802. Successor Substituted.................. 70
</TABLE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
<TABLE>
<CAPTION>
<S> <C> <C>
Section 901. Supplemental Indentures Without
Consent of Holders................... 70
Section 902. Supplemental Indentures with Consent of
Holders.............................. 72
Section 903. Execution of Supplemental Indentures... 73
Section 904. Effect of Supplemental Indentures...... 73
Section 905. Conformity with Trust Indenture Act.... 73
</TABLE>
iii
<PAGE>
Table of Contents
(continued)
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 906. Reference in Securities to Supplemental
Indentures........................... 74
</TABLE>
ARTICLE TEN
COVENANTS
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1001. Payment of Principal Premium and Interest 74
Section 1002. Maintenance of Office or Agency.......... 74
Section 1003. Money for Securities Payments to
Be Held in Trust....................... 76
Section 1004. Statement by Officers as to Default...... 77
Section 1005. Existence................................ 77
Section 1006. Maintenance of Properties................ 77
Section 1007. Payment of Taxes and Other Claims........ 78
Section 1008. Restrictions on Sale or Pledge of
Stock of Home Savings.................. 78
Section 1009. Waiver of Certain Covenants.............. 79
</TABLE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1101. Applicability of Article................. 80
Section 1102. Election to Redeem; Notice to Trustee.... 80
Section 1103. Selection by Trustee of Securities
to Be Redeemed......................... 80
Section 1104. Notice of Redemption..................... 81
Section 1105. Deposit of Redemption Price.............. 82
Section 1106. Securities Payable on Redemption Date.... 82
Section 1107. Securities Redeemed in Part.............. 83
</TABLE>
ARTICLE TWELVE
SINKING FUNDS
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1201. Applicability of Article................. 84
Section 1202. Satisfaction of Sinking Fund
Payments with Securities............... 84
Section 1203. Redemption of Securities for Sinking
Fund................................... 84
</TABLE>
iv
<PAGE>
Table of Contents
(continued)
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 1301. Applicability; Conversion Privilege and
Conversion Price....................... 85
Section 1302. Exercise of Conversion Privilege......... 86
Section 1303. Fractions of Shares...................... 88
Section 1304. Adjustment of Conversion Price........... 88
Section 1305. Notice of Adjustments of Conversion
Price.................................. 95
Section 1306. Notice of Certain Corporate Action....... 95
Section 1307. Company to Reserve Common Stock.......... 96
Section 1308. Taxes on Conversions..................... 97
Section 1309. Covenant as to Common Stock.............. 97
Section 1310. Cancellation of Converted Securities..... 97
Section 1311. Provisions in the Case of Consolidation,
Merger or Sales of Assets.............. 97
</TABLE>
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1401. Company's Option to Effect Defeasance
or Covenant Defeasance................. 98
Section 1402. Defeasance and Discharge................. 98
Section 1403. Covenant Defeasance...................... 99
Section 1404. Conditions to Defeasance or
Covenant Defeasance.................... 100
Section 1405. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions............... 102
Section 1406. Reinstatement............................ 103
</TABLE>
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1501. Securities Subordinate to Senior
Indebtedness........................... 104
Section 1502. Payment Over of Proceeds Upon
Dissolution, Etc....................... 104
Section 1503. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities............. 106
Section 1504. No Payment When Senior Indebtedness
in Default............................. 106
Section 1505. Payment Permitted if No Default.......... 107
</TABLE>
v
<PAGE>
Table of Contents
(continued)
<TABLE>
<CAPTION> Page
----
<S> <C> <C>
Section 1506. Subrogation to Rights of Holders of
Senior Indebtedness..................... 107
Section 1507. Provisions Solely to Define Relative
Rights.................................. 108
Section 1508. Trustee to Effectuate Subordination....... 108
Section 1509. No Waiver of Subordination Provisions..... 108
Section 1510. Notice to Trustee......................... 109
Section 1511. Reliance on Judicial Order or Certificate
of Liquidating Agent.................... 110
Section 1512. Trustee Not Fiduciary for Holders
of Senior Indebtedness.................. 110
Section 1513. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of
Trustee's Rights........................ 111
Section 1514. Article Applicable to Payment Agents...... 111
</TABLE>
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1601. Purposes for Which Meetings May Be
Called.................................. 111
Section 1602. Call, Notice and Place of Meetings........ 111
Section 1603. Persons Entitled to Vote at Meetings...... 112
Section 1604. Quorum; Action............................ 112
Section 1605. Determination of Voting Rights;
Conduct and Adjournment of Meetings..... 113
</TABLE>
vi
<PAGE>
THIS INDENTURE, dated as of August 24, 1994, is between H. F. AHMANSON
& COMPANY, a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal office at 4900
Rivergrade Road, Irwindale, California 91706, and The First National Bank of
Chicago, a national banking association duly incorporated and existing under the
laws of the United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of the applicable
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally
<PAGE>
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) unless the context otherwise requires, the words "Article" and
"Section" refer to an Article and Section, respectively, of this Indenture;
and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or,
at the option of the Company, in an official language of the country of
publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial community at
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
Authorized Newspapers meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security, in the form (to the extent
applicable thereto) established pursuant to Section 201, which is payable to the
bearer.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
2
<PAGE>
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in that Place of Payment, or the city in which the
Corporate Trust Office of the Trustee is located, are authorized or obligated by
law or executive order to close.
"Cedel S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
"Closing Price" for any day means the last reported sale price of the
Common Stock regular way on such day or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way on such day, in either case on the New York Stock Exchange or, if
the Common Stock is not listed or admitted to trading on such exchange, on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the NASDAQ National Market System or, if the Common
Stock is not listed or admitted to trading on any national securities exchange
or quoted on such National Market System, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for that purpose.
If the Common Stock is not listed or admitted to trading on any national
securities exchange, quoted on such National Market System or listed in any list
of bid and asked prices in the over-the-counter market, "Closing Price" shall
mean the fair market value of the Common Stock as determined in good faith by
the Board of Directors.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"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.
3
<PAGE>
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at One First National
Plaza, Suite 0126, Chicago, Illinois 60670-0126, Attention: Corporate Trust
Services Division, except that for purposes of Section 1002, such term shall
mean the office or agency of the Trustee in the Borough of Manhattan, the City
of New York, which office at the date hereof is located at 14 Wall Street,
Eighth Floor, New York, New York 10005.
"corporation" means a corporation, association, company, joint stock
company or business trust.
"coupon" means any interest coupon of a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 1403.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1402.
"Defeasible Series" has the meaning specified in Section 1401.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
4
<PAGE>
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 301.
"Exchange Rate Officer's Certificate", with respect to any date for
the payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in
ECU, and other composite currency or Foreign Currency, and signed by the
Chairman of the Board, the Vice-Chairman of the Board, the President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301 and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and registered
in the name of, the Depositary for such Securities or a nominee thereof.
"Holder" means, in the case of any Registered Security, a Person in
whose name a Security is registered in the Security Register and, in the case of
any Bearer Security, the bearer thereof and, when used with respect to any
coupon, the bearer thereof.
"Home Savings" means Home Savings of America, FSB and its successors
(whether by consolidation, merger, conversion, transfer of substantially all
their assets and business or
5
<PAGE>
otherwise), but such term does not include any Subsidiary of Home Savings.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of a particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used 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 therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the 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. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
6
<PAGE>
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided, however, 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;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1402; and
(4) Securities that have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof to such date pursuant to Section 502, (B) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as contemplated
by Section 301 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in Clause (A) above) of such Security, and (C)
Securities owned by the Company or any other obligor upon the Securities or any
Subsidiary of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities that the Trustee knows to
be so owned shall be so disregarded. Securities so owned that have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act
7
<PAGE>
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Subsidiary of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 201, which is registered on
the books of the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant
8
<PAGE>
trust officer, the controller or any assistant controller 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.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (a) all indebtedness of the Company (including indebtedness of
others guaranteed by the Company) other than the Securities and the Company's
9.875% Subordinated Notes due 1999, which is (i) for money borrowed or (ii)
evidenced by a note or similar instrument given in connection with the
acquisition of any businesses, properties or assets of any kind, (b) obligations
of the Issuer as lessee under leases required to be capitalized on the balance
sheet of the lessee under generally accepted accounting principles and leases of
property or assets made a part of any sale and lease-back transaction to which
the Company is a party and (c) amendments, renewals, extensions, modifications
and refundings of any such indebtedness or obligation, unless in any case in the
instrument creating or evidencing any such indebtedness or obligation or
pursuant to which the same is outstanding it is provided that such indebtedness
or obligation is not superior in right of payment to the Securities, in each
case whether such indebtedness or obligation is outstanding on the date of this
Indenture or thereafter created, incurred or assumed.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
that
9
<PAGE>
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Trading Day" means, with respect to the Common Stock, each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on which securities
are not traded on the exchange or market on which the Common Stock is traded.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean each Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990 and as in force at the date as
of which this instrument was executed; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"United States" means the United States of America, its territories,
its possessions (including the Commonwealth of Puerto Rico), and other areas
subject to its jurisdiction.
"United States Alien" means any person who, for United States Federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
nonresident fiduciary of a foreign estate or trust, or a foreign partnership one
or more members of which is, for United States Federal income tax purposes, a
foreign corporation, a nonresident alien individual or a nonresident alien
fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section
1304.
"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."
10
<PAGE>
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless
11
<PAGE>
such officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which
his or her certificate or opinion is based are erroneous. Any such certificate
or opinion of counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters
is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable in whole or in
part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities duly
called and held in accordance with the provisions of Article Sixteen, 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 are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of
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deeds, certifying that the individual signing such instrument or writing
acknowledged to him or her the execution thereof. Where such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
The ownership of Registered Securities shall be proved by the Security
Register.
The principal amount and serial numbers of Bearer Securities held by
any Person, and the date 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, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that as
of the date therein mentioned such Person had on deposit with such Depositary,
or exhibited to it, the Bearer Securities in the amount and with the serial
numbers 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 of the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, (2) such Bearer Security is produced to
the Trustee by some other Person, (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
that the Trustee deems sufficient, and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section
104.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of 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, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
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The Company may, in the circumstances permitted by the Trust Indenture
Act, set any day as the record date for the purpose of determining the Holders
of Outstanding Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Outstanding Securities of such series made by any
Person in respect of any such action, or, in the case of any such vote, prior to
such vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or vote, as
the case may be. With regard to any record date set pursuant to this paragraph,
the Holders of Outstanding Securities of the relevant series on such record date
(or their duly appointed agents), and only such Persons, shall be entitled to
give or take the relevant action, whether or not such Holders remain Holders
after such record date.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of whom may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it 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.
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Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his or her address as it appears in the Security Register, not
later than the latest date (if any), and not earlier than the earliest date (if
any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Notice shall be
sufficiently given to Holders of Bearer Securities if published in an Authorized
Newspaper in the City of New York and in such other city or cities as may be
specified in the Securities on at least two Business Days, the first such
publication to be not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice. 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 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.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impractical to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided, nor any defect in any
notice so published, shall affect the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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<PAGE>
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. 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 109. 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 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (including any Paying Agent or Authenticating Agent
appointed pursuant to Section 614), other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the law of the State of New York, but without regard to
principles of conflicts of laws.
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<PAGE>
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security shall not be a Business Day
at any Place of Payment (or the City in which the Corporate Trust Office of the
Trustee is located), then (notwithstanding any other provision of this Indenture
or of the Securities (other than a provision of the Securities of any series
that specifically states that such provision shall apply in lieu of this
Section)) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment (provided such Business Day is
a Business Day in the City in which the Corporate Trust Office of the Trustee is
located) with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repurchase Date or at the Stated Maturity; provided, however,
that no interest shall accrue on the unpaid interest segment for the period from
and after such Interest Payment Date, Redemption Date, Repurchase Date or Stated
Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series (including, with respect to Bearer
Securities, the coupons related thereto) shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
Unless otherwise specified in accordance with Section 301, Bearer
Securities shall have coupons attached.
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<PAGE>
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
[ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.]
H. F. AHMANSON & COMPANY
___________________________________
No. ___________ [$]_________________
H. F. AHMANSON & COMPANY, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to [______________________________, or
registered assigns,] [bearer upon presentation and surrender of this Security]
the principal sum of _________________ Dollars ($________) on
____________________________________ [if the Security is to bear interest prior
to Maturity, insert -- , and to pay interest thereon from _____________ or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, [annually] [semi-annually] [quarterly] on _________________ [and]
[,________, ______________ and ] in each year, commencing ____________, at [if
the Security is to bear interest at a variable rate, insert--the rate of ____ %
per annum] [if the Security is to bear interest at a variable rate, insert --
the rate or rates as determined herein], until the principal hereof is paid or
made available for payment [if applicable, insert --, and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of ____%
per annum on any overdue principal and premium and on any overdue instalment of
interest]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such
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<PAGE>
Indenture, be paid to [the Person in whose name this Security (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][bearer upon presentation and surrender of the interest
coupons attached hereto as they severally mature]. [Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (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 Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is to bear interest at a variable rate, insert --
[appropriate provisions with regard to the determination of the applicable
interest rate or rates based upon the prime rate, the LIBOR rate, the secondary
market rate for T-Bills or United States dollar domestic certificates of
deposit, the auction rate for T-Bills or such other rate as selected]]
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ______________, in such
coin or currency of the United States of America [if applicable, specify other
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<PAGE>
currency] as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert -- ; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
No payment of principal (and premium, if any) or interest with respect
to any Bearer Securities shall be made at the Corporate Trust Office of the
Trustee under the Indenture or at any other office or agency of the Company in
the United States or by transfer to an account in, or by check mailed to an
address in, the United States. Notwithstanding the foregoing, payment of
principal of (and premium, if any) and interest on any Bearer Securities and
payments of any such additional amounts may be made at the Corporate Trust
Office of the Trustee, if (but only if) payment of the full amount of such
principal, premium, interest or additional amounts, as the case may be, at all
offices located outside the United States through which payment is to be made in
accordance with the Indenture is illegal or effectively precluded because of the
imposition of exchange controls or other similar restrictions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, [neither]
this Security [nor any coupon attached hereto] shall [not] be entitled to any
benefit 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: _____________________
H. F. AHMANSON & COMPANY
By: _______________________________
Attest:
_____________________________________
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<PAGE>
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of August 24, 1994 and all indentures
supplemental thereto (herein called the "Indenture"), between the Company and
The First National Bank of Chicago, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture 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 Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [if applicable, insert --,
limited in aggregate principal amount to $_____________].
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes.
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, (1) on
____________ in any year commencing with the year ____ and ending with the year
____ through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [if applicable, insert -- on or after _____________], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning ____________ of the years indicated,
<TABLE>
<CAPTION>
<S> <C> <C>
Year Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
of the of the Sinking Fund
Sinking Fund
</TABLE>
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<PAGE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable [upon presentation and surrender of coupons for such
interest] [to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof,] all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company
may not, prior to __________ redeem any Securities of this series as
contemplated by [if applicable, --Clause (2) of] the preceding paragraph as a
part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than _____% per annum.]
[The sinking fund for this series provides for the redemption on
____________ in each year beginning with the year _____ and ending with the year
_______ of [if applicable, -- not less than $___________ ("mandatory sinking
fund") and not more than] $_________ aggregate principal amount of Securities of
this series. Securities of this series acquired or redeemed by the Company
otherwise than through [if applicable, -- mandatory] sinking fund payments may
be credited against subsequent [if applicable, -- mandatory] sinking fund
payments otherwise required to be made [if applicable, -- in the inverse order
in which they become due].]
[If the Security is subject to redemption or conversion in part of any
kind, insert -- In the event of [redemption] [or] [conversion] of this Security
in part only, a new Security or Securities of this series and of like tenor for
the [unredeemed] [or] [unconverted] portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.]
[If the Security is subject to conversion, insert --Subject to and
upon compliance with the provisions of the Indenture, the Holder of this
Security is entitled, at his or her option, at any time on or before the close
of business on _____________, or in case this Security or a portion hereof is
called for redemption, then in respect of this Security or such
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<PAGE>
portion hereof until and including, but (unless the Company defaults in making
the payment due upon redemption or repurchase) not after, the close of business
on the Redemption Date or the repurchase date, to convert this Security (or any
portion of the principal amount hereof which is $_________ or an integral
multiple thereof), at the principal amount hereof, or of such portion, into
fully paid and non-assessable shares (calculated as to each conversion to the
nearest 1/100 of a share) of Common Stock of the Company at a conversion price
equal to $__________ aggregate principal amount of Securities for each share of
Common Stock (or at the current adjusted conversion price if an adjustment has
been made as provided in the Indenture) by surrender of this Security, duly
endorsed or assigned to the Company or in blank, to the Company at its office or
agency in [Los Angeles, California] [New York, New York,] [or to such office or
agency outside the United States as the Company may designate] accompanied by
[all unmatured coupons and any matured coupons in default attached hereto and]
written notice to the Company that (i) the Holder hereof elects to convert this
Security, or if less than the entire principal amount hereof is to be converted,
the portion hereof to be converted, and (ii) the name or names (with addresses)
in which the certificate or certificates for shares of Common Stock issuable on
such conversion shall be issued. [In case such surrender shall be made during
the period from the close of business on any Regular Record Date next preceding
any Interest Payment Date to the opening of business on such Interest Payment
Date (unless this Security or the portion thereof being converted has been
called for redemption, or is to be repurchased, on such Interest Payment Date or
on a Redemption Date or a repurchase date within such period), this Security
shall also accompanied by payment in New York Clearing House or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of this Security then being
converted (or, if this Security was issued in exchange for a Bearer Security
after the close of business on such Regular Record Date, by surrender of one or
more coupons relating to such Interest Payment Date or by both payment in such
funds and surrender of such coupon or coupons, in either case, in an amount
equal to the interest payable on such Interest Payment Date on the principal
amount of this Security then being converted).] [Subject to the aforesaid
requirement for payment and, in the case of a conversion after the Regular
Record Date next preceding any Interest Payment Date and on or before such
Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest (with certain exceptions provided in the Indenture),] no
payment or adjustment is to be made on conversion for interest accrued hereon or
for dividends on the Common Stock issued on conversion. No fractions of shares
or scrip representing fractions of shares will be issued on
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<PAGE>
conversion, but instead of any fractional interest the Company shall pay a cash
adjustment as provided in the Indenture. The conversion price is subject to
adjustment as provided in the Indenture. In addition, the Indenture provides
that in case of certain consolidations or mergers to which the Company is a
party or the transfer of substantially all of the assets of the Company, the
Indenture shall be amended, without the consent of any Holders of Securities, so
that this Security, if then outstanding, will be convertible thereafter during
the period this Security shall be convertible as specified above, only into the
kind and amount of securities, cash and other property receivable upon the
consolidation, merger or transfer by a Holder of the number of shares of Common
Stock into which this Security might have been converted immediately prior to
such consolidation, merger or transfer (assuming such holder of Common Stock
failed to exercise any rights of election and received per share the kind and
amount received per share by a plurality of non-electing shares).]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of (1) the entire indebtedness of this Security or (2)
certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to --insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
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 to be
affected under the
24
<PAGE>
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each 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 consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security 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 Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, places and rates, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
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satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Securities 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.
Title to Bearer Securities and coupons shall pass by delivery.
[The Securities of this series are issuable only in registered form
without coupons in denominations of $_____ and any integral multiple thereof.]
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge 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.
[Prior to due presentment of this 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 this Security is registered] [The Company,
the Trustee and any agent of the Company or the Trustee may treat the Bearer of
any Bearer Security and any coupon attached thereto] as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN
THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY
SECURITY AUTHENTICATED AND DELIVERED
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UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS
SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN
SUCH LIMITED CIRCUMSTANCES.
Section 205. Form of Coupon.
[Face of coupon]
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
No. ______
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.
On the [_____] Interest Payment Date
[_________________________________]
H. F. AHMANSON & COMPANY (the "Company") will pay to the bearer, upon surrender
hereof, the interest payable with respect to above-referenced Interest Payment
Date on its [Name of the Securities] with the certificate number set forth
below, together with any additional amounts which may be payable under the terms
of the Security, unless the Security shall have been previously called for
redemption or submitted for repayment and sums for such redemption or repayment
duly provided. Payment of this coupon will be made in the currency set forth on
the face of such Security upon surrender hereof, subject to applicable laws and
regulations, only (subject to certain limited exceptions set forth in such
Security) at such paying agencies outside the United States and its possessions
as the Company may appoint from time to time. Such payments will be made, at
the option of the bearer, by check mailed or delivered to an address outside the
United States and its possessions furnished by such bearer or by payment to an
account maintained by the payee with a bank located outside the United States.
[This coupon will become void unless presented for payment within [__] years
from the due date hereof.] Reference is made to the Security for definitions of
terms used herein.
H. F. AHMANSON & COMPANY
By: __________________________
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Certificate Number: ___________________________
[Reverse of Coupon]
Paying Agencies (subject to change)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Section 206. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, As Trustee
By: _______________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article
Fifteen.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
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(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series that 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 the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities that, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, and the manner in
which, and the person to whom, any interest on any Bearer Securities of the
series shall be payable, if otherwise then upon presentation and surrender
of the coupons appertaining thereto as they severally mature.
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Interest Payment
Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
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(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the
series shall be payable, if other than Dollars, and the Exchange Rate and
Exchange Rate Agent;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined and any
special voting or defeasance provisions in connection thereto;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election
is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(14) if applicable, that the Securities of the series shall be
convertible as provided in Article Thirteen;
(15) if applicable, that the Securities of the series shall be
defeasible as provided in Article Fourteen;
(16) whether Securities of the series shall be issuable as Registered
Securities or Bearer Securities, and whether the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries and Global
Exchange Agent for such Global Security or Global Securities and any
circumstances other than those set forth in Section 305 in which any such
Global Security may be transferred to, and registered and exchanged for
Securities registered in the name of, a Person other than the Depositary
for such Global Security or a nominee thereof and in which any such
transfer may be registered;
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(l7) if the Company will pay any additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a United
States Alien (including any modification in the definition of such term),
in respect of any tax, assessment or governmental charge withheld or
deducted, under what circumstances and with what procedures and
documentation the Company will pay such additional amounts, whether such
additional amounts will be treated as interest or principal pursuant to
this Indenture, and whether the Company will have the option to redeem such
Securities rather than pay additional amounts (and the terms of any such
option);
(18) the inclusion of any additional Events of Default or variations
from the Events of Default set forth in Section 501 for the Securities of
the series;
(19) the applicability or non-applicability of Section 1008, or any
variations in Section 1008, or the applicability of any additional
restrictive covenants;
(20) if payments of principal of (and premium, if any) or interest on
the Securities of the series are to be made in a Foreign Currency other
than the currency in which such Securities are denominated, the manner in
which the Exchange Rate with respect to such payments shall be determined
or if the Exchange Rate is to be determined otherwise than as provided in
Section 101;
(21) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the form and terms of such certificates, documents or
conditions; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
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If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Fifteen. The Securities shall not be
superior in right of payment to, and shall rank pari passu with, the Company's
9.875% Subordinated Notes due 1999.
Section 302. Denominations.
The Securities of each series shall be issuable only in the form and
in such denominations as shall be specified as contemplated by Section 301. In
the absence of any such specified denomination with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any Series together with
any coupons relating thereto executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security or coupon shall be
mailed or otherwise delivered (i) to any person who is not a United States Alien
or to any location in the United States, (ii) unless the Company shall have
received such certificates required by Section
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311 or Section 301 hereof, and (iii) unless the Company has no reason to know
that such certificates are false.
If the form or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) if the forms of such Securities and any coupons has been
established by or pursuant to Board Resolution as permitted by Section 201,
that such form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to Board Resolution as permitted by Section 301,
that such terms have been established in conformity with the provisions of
this Indenture; and
(3) that such Securities, together with any coupons appertaining
thereto, when 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 valid and legally binding obligations
of the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issuance 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 that
is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be
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<PAGE>
issued. After any such first delivery, any separate request by the Company that
the Trustee authenticate 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 the authentication and delivery of
such Securities continue to be complied with.
Each Registered Security shall be dated the date of its
authentication. Unless otherwise specified in Section 301, each Bearer Security
(including a Bearer Security represented by a temporary Global Security) shall
be dated as of the date of original issuance of the first Security of such
series to be issued.
No Security or coupon attached 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 herein executed by the Trustee by manual signature, and
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 otherwise permitted by this Indenture, the Trustee shall
not authenticate and deliver any Bearer Security unless all pertinent coupons
for interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities 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 and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
Every temporary Security shall be executed by the Company and
authenticated by the Trustee and registered by the Security Registrar, upon the
same conditions, and with like effect, as a definitive Security.
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Except in the case of Securities represented by a temporary Global
Security (which shall be exchanged in accordance with the provisions of the
three succeeding paragraphs), if temporary Securities of any series are issued,
the Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series (accompanied by any unmatured coupons appertaining thereto) at
the office or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, except that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered 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 and tenor.
Unless otherwise specified as contemplated by Section 301, if Bearer
Securities of any series are represented by a temporary Global Security, any
such temporary Global Security shall be delivered to the Depositary for the
benefit of Euro-clear and Cedel S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in or determined pursuant to the terms of any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
permanent Securities of the same series, in aggregate principal amount equal to
the principal amount of such temporary Global Security, executed by the Company.
On or after the Exchange Date, such temporary Global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for permanent
Securities of the same series and of like tenor without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
Global Security, an equal aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such temporary Global Security to be exchanged. The permanent Securities to be
delivered in exchange for any such temporary Global Security shall be in
definitive bearer form or registered from, or shall be represented by a
permanent Global Security, or any combination thereof, as specified as
contemplated by Section 301, and, if any
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combination thereof is so specified, as requested by the beneficial owner
thereof.
Unless otherwise specified in any such temporary Global Security, the
interest of a beneficial owner of Securities of a series represented by such
temporary Global Security shall be exchanged for permanent Securities of the
same series and of like tenor following the Exchange Date when the account
holder instructs Euro-clear or Cedel S.A., as the case may be, to request such
exchange on his behalf and delivers to Euro-clear or Cedel S.A., as the case may
be, any certificate specified as contemplated by Sections 301 and 311. Unless
otherwise specified in such temporary Global Security, any such exchange shall
be made free of charge to the beneficial owners of such temporary Global
Security, except that a person receiving permanent Securities must bear the cost
of insurance, postage, transportation and the like in the event that such person
does not take delivery of such permanent Securities in person at the offices of
Euro-clear or Cedel S.A.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as permanent Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary Global
Security representing a series of Bearer Securities on an Interest Payment Date
for Securities of such series occurring prior to the applicable Exchange Date
shall be payable to Euro-clear and Cedel S.A. on such Interest Payment Date,
upon delivery by Euro-clear and Cedel S.A. to the Trustee of any certificate
specified as contemplated by Section 301, for credit without further interest on
or after such Interest Payment Date to the respective accounts of the persons
who are the beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euro-clear or Cedel S.A., as the
case may be, any certificate specified as contemplated by Sections 301 and 311.
Section 305. Registration, Registration of Transfer
and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar"
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for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that 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 Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.
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 entitled 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 shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his or her attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (1) to issue, register the transfer
of Securities of any series to be redeemed during a period beginning at the
opening of business 15 days before the day of the mailing or publication, as
applicable, of a notice of redemption of Securities of that series selected for
redemption under Section 1103 and ending at the close of business on the day of
such mailing, (2) to register the transfer of any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or
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(3) to exchange any Bearer Security so selected for redemption except that such
Bearer Security may be exchanged for a Registered Security of like tenor and
terms of that series, provided that such Registered Security shall be
simultaneously surrendered for exemption.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denomination or denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, 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 a
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 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 this Indenture, interest represented by coupons shall be payable
only upon presentation and surrender of such coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date for payment, as the case may be,
and interest or Defaulted Interest, as the case may be, will 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 will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(1) such
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Depositary (A) notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security or (B) ceases to be a clearing agency
registered under the Exchange Act, (2) the Company executes and delivers to the
Trustee a Company Order that such Global Security shall be so transferable,
registrable and exchangeable, and such transfers shall be registrable, (3) there
shall have occurred and be continuing an Event of Default with respect to the
Securities evidenced by such Global Security or (4) there shall exist such other
circumstances, if any, as have been specified for this purpose as contemplated
by Section 301. Notwithstanding any other provision in this Indenture, a Global
Security to which the restriction set forth in the preceding sentence shall have
ceased to apply may be transferred only to, and may be registered and exchanged
for Securities registered only in the name or names of, such Person or Persons
as the Depositary for such Global Security shall have directed, and no transfer
thereof other than such a transfer may be registered.
If at any time the Depositary for a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time the Depositary for a Global Security ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when such Depositary is required to be so registered in order
to act as a Depositary, the Company shall appoint a successor Depositary with
respect to such Global Security. If a successor Depositary for such Global
Security is not appointed by the Issuer within 90 days after the Company
receives such notice or becomes aware of such condition, the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Debt Securities, shall authenticate and deliver Debt
Securities in definitive registered form in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security.
The Company may at any time and in its sole discretion determine that
the Debt Securities issued in the form of one or more Global Securities shall no
longer be represented by a Global Security. In such event the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities, shall authenticate and deliver, Debt
Securities in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Global Security, in exchange for such Global Security.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first
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sentence of the preceding paragraph shall apply, whether pursuant to this
Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated,
registered and delivered in the form of, and shall be, a Global Security.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange. Neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges thereafter, unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Order to the Security Registrar.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities or Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
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 has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security (and mutilated
coupon, if applicable), a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such 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 the interest on any Bearer Security shall be payable
only at an office or agency located outside the United States and only upon
presentation and surrender of the coupons appertaining thereto (unless otherwise
specified as contemplated by Section 301).
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of counsel and the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security, or in exchange for a
Security to which a mutilated, destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security and its
coupons, if any, 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 that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business on the next succeeding Interest Payment Date,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date and interest will not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Any interest on any Registered Security of any series that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and
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such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
that shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his or her address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice is given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of
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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 Security that is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
shall be payable on such Interest Payment Date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Security (or one or more Predecessor
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 Security that is converted, interest after the date of
conversion of such Security shall not be payable.
Section 308. 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 as the
owner of such Registered Security for the purpose of receiving payment of
principal of and any premium and (except as contemplated by Section 301(3) and
subject to Section 307) any interest on such Registered Security and for all
other purposes whatsoever, whether or not such Security is overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Bearer Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be effected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
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Section 309. Cancellation.
All Securities or coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and all Registered Securities and matured coupons so delivered
shall be promptly cancelled by it. All Bearer Securities and unmatured coupons
so delivered shall be held by the Trustee and, upon instruction by a Company
Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tenor or the related coupon, pursuant to Section 306. All Bearer
Securities and unmatured coupons held by the Trustee pending such cancellation
or reissuance shall be deemed to be delivered for cancellation for all purposes
of this Indenture and the Securities. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder that the Company may have acquired in any manner whatsoever,
and may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder that
the Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled 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 this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. Certificate by a Person Entitled to
Delivery of a Bearer Security.
Whenever any provision of this Indenture contemplates that a Person
shall be entitled to delivery of a Bearer Security, no delivery of such Bearer
Security shall be made unless and until the Company shall have received
certification substantially in the form of Exhibit A-1 and, if applicable,
Exhibit A-2 and Exhibit B hereto, with only such changes as shall be approved by
the Company then consented to by the Trustee whose consent shall not be
unreasonably withheld, and any additional certification as
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may be required pursuant to United States Department of Treasury regulations.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of conversion, registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered and all
coupons, if any, appertaining thereto (other than (i) Securities that have
been destroyed, lost or stolen and that have been replaced or paid as
provided in Section 306, (ii) Securities and coupons, if any, 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 1003) have been
delivered to the Trustee for cancellation, (iii) coupons appertaining to
Bearer Securities surrendered in exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been
waived as provided in this Indenture, and (iv) coupons, if any,
appertaining to the Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived and provided in
this Indenture); or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
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and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trustee funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of
such deposit (in the case of Securities that have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 401 (and held by it or any
Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company upon Company Request.
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ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Fifteen or 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):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of a series of Securities other than that
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 that 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) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or Home Savings (including a
default with respect to Securities of any series other than that series)
having an aggregate principal amount outstanding of at least $10,000,000 or
under any mortgage, indenture or instrument
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under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company or Home
Savings (including this Indenture) having an aggregate principal amount
outstanding of at least $10,000,000, whether such indebtedness now exists
or shall hereafter be created, which default shall constitute a failure to
pay any portion of the principal of such indebtedness when due and payable
after the expiration of any applicable grace period with respect thereto or
shall have resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 35 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to
be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by
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it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default or variations in the foregoing Events
of Default provided with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or,
if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may
be specified in the terms thereof) of all of the Securities of that series
to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due
and payable.
At any time after such a declaration of acceleration with respect
to 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 a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and any
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interest thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor 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
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
that has become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its
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discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys 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 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, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture 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 coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder of a Security
or coupon thereof or to authorize the Trustee to vote in respect of the claim of
any Holder of a Security or coupon in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the Securities
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
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own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities and any coupons in respect of
which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: Subject to Article Fifteen, to the payment of the amounts
then due and unpaid for principal of and any premium and interest on the
Securities and interest evidenced by coupons in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities and coupons first for any premium and interest, and second, for
any principal, respectively.
The Holders of each series of Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount determined
by the Exchange Rate Agent by converting the principal amount Outstanding of
such series of Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is denominated
into Dollars at the Exchange Rate as of the date of declaration of acceleration
of Maturity of the Securities.
Section 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons 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
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(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that 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 reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request in such amount as shall be reasonably
acceptable to the Trustee;
(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 that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and
to Convert.
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 and any premium and
(except as contemplated by Section 301(3) and subject to Section 307) interest
on such Security or payment of such coupon on the respective Stated Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment
and, if provided in Section 301, the right to convert such Security in
accordance with Article Thirteen and to institute suit for its enforcement,
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and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
or coupons 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 the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 512. Control by Holders.
The Holders of 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
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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,
provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may, on behalf of the Holders of
all the Securities of such series and any related coupons, waive any past
default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof that under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Trustee
or the Company.
Section 515. Waiver of Usury, Stay or Extension Laws.
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The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any 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 (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case 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.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in principal amount of the
Outstanding Securities of any series, determined as provided in Section
512, relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series.
No provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any personal financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Section 602. Notice of Defaults.
The Trustee shall give notice of any default known to the Trustee with
respect to the Securities of any series when, as and to the extent provided by
the Trust Indenture Act and in the manner provided by Section 106 hereof;
provided, however, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the default is known to the
Trustee. For the purpose of this Section, the term "default" means any event
that is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) 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 good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney upon reasonable advance written
notice and during regular business hours; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604. Not Responsible for Recitals or
Issuance of Securities.
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The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
The Trustee or any Authenticating Agent shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities or Coupons.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and
coupons and, subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee, or by any Paying Agent (other than the
Company if the Company shall act as Paying Agent), in trust hereunder need
not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it 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) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
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(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder or performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company under this Section shall not be
subordinated to the payment of Senior Indebtedness pursuant to Article
Fifteen. As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities
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, if
any) or interest on particular Securities or any coupons.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture
and the Company shall take prompt action to have a successor Trustee
appointed in the manner provided herein. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
second to the last paragraph of Section 310(b) of the Trust Indenture Act
or any equivalent successor provision.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of which shall be a
Person that (i) is eligible pursuant to the Trust Indenture Act to act as
such, (ii) has a combined capital and surplus of at least $50,000,000,
(iii) is subject to supervision or examination by federal, state or
District of Columbia authority, and (iv) has a Corporate Trust Office in
the City of New York, New York. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so
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published. Neither the Company nor any person directly or indirectly
controlling, controlled by or under common control with the Company may
serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment
of Successor.
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 in accordance with the
applicable requirements of Section 611.
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 611
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
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 to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) 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, (A) the Company by a Board Resolution may remove the
Trustee with respect to all securities, or (B) subject
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to Section 514, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself or herself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
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 a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any Series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the 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 611, 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 and accepted appointment in the manner
required by Section 611, any Holder 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.
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 to all Holders
of Securities of such series in the manner provided in Section 106. 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.
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Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and that (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the 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 and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or
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any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to herein.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any 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.
In the event any Securities shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver
such Securities, in either its own name or that of its predecessor Trustee, with
the full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
Section 613. Preferential Collection of Claims
Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities or coupons that shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series or any
related coupons issued upon original issue and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities or coupons 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 or coupons by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent 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
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent 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 the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, 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 to 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 to the Company. Upon receiving such a
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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 that shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. 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 to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, As Trustee
By: ________________________________
As Authenticating Agent
By: ________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names
and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
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(1) semi-annually, not later than April 1 and October 1 in each year,
a list for each series of Registered Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
of Registered Securities of such series as of the preceding March 15 or
September 15, as the case may be, 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information;
Communications to Registered Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Registered Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Registered Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
The rights of the Registered Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
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A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company 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) that 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; 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 that may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the 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 by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on
Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person that acquires by conveyance
or transfer, or that leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust
organized and validly 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 supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed and, to
the extent applicable, shall have provided for conversion rights in
accordance with Section 1311;
(2) immediately after giving effect to such transaction and treating
any indebtedness that becomes an obligation of the Company or any
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, and no event that, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance that would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall
be necessary effectively to secure the
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Securities equally and ratably with (or prior to) all indebtedness secured
thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of 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 in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, 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 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 (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants
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are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any restrictions
(including restrictions relating to payment in the United States) on the
payment of principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations, or to permit or facilitate
the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to 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 611; or
(8) to cure any ambiguity, to correct or supplement any provision
herein that may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under
this Indenture; provided, however, that such action pursuant to this clause
(8) shall not adversely affect the interests of the Holders of Securities
of any series (except a series consenting pursuant to Section 902) in any
material respect.
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Section 902. 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 a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change the coin or currency in which any Security or any premium or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment or delivery on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date),
or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders, 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
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, 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, provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to the
"Trustee" and concomitant changes in this Section and Section 1009, or the
deletion of
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this proviso, in accordance with the requirements of Sections 611 and
901(7), or
(4) adversely affect any applicable conversion right.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities, or that 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 under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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Section 906. 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.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture. Unless otherwise specified as contemplated
by Section 301 with respect to any series of Securities, any interest due on
Bearer Securities on or before Maturity shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. At the Company's option, payments
of principal or interest may be made by check or by transfer to an account
maintained by the payee subject, in the case of Bearer Securities, to the
provisions of Section 1002.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer, exchange or conversion and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, subject to any laws and 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
the related coupons may be presented and surrendered for payment; provided,
however, that if the Securities of such series are
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listed on The International (London) Stock Exchange or any other stock exchange
located outside the United States and said stock exchange shall so require, the
Company may maintain a Paying Agent in London 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 any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency in respect of any series of Securities or shall fail
to furnish the Trustee with the address thereof, such presentations and
surrenders of Securities of that series may be made and notices and demands may
be made or served at the address of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for
payment at the place specified for that purpose as contemplated by Section 301
or, if no such place is specified, at the main office of the Trustee in London
and the Company hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands.
No payment of principal or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States, by check mailed to
any address in the United States, by transfer to an account located in the
United States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside of the United States; provided, however, that if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any interest on any such Bearer Security shall be made at the
Office of the Company's paying agent in the Borough of Manhattan, the City of
New York, if (but only if) payment in Dollars of the full amount of such
principal, interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintains for such purpose by the Company in
accordance with its Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency.
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 will give prompt written notice to the Trustee of any
such designation or
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rescission and of any change in the location of any such other office or agency.
Section 1003. 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 will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any coupons appertaining thereto, it will, prior to
each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, 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 will 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 will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of
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the principal of or any premium or interest on any Security of any series and
remaining unclaimed for two years after such principal, premium or interest has
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 coupon 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 a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, the City of New York,
New York, 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, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
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The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1008. Restrictions on Sale or Pledge of
Stock of Home Savings.
The Company (a) shall not (i) sell, transfer or otherwise dispose of
any shares of Voting Stock of Home Savings or (ii) permit Home Savings to issue,
sell or otherwise dispose of shares of its Voting Stock unless in either case
Home Savings remains a Controlled Subsidiary, and (b) shall not permit Home
Savings to (i) merge or consolidate unless the surviving entity is the Company
or a Controlled Subsidiary or (ii) convey or transfer its properties and assets
substantially as an entirety to any Person, except to the Company or a
Controlled Subsidiary. "Controlled Subsidiary" means any Person at least 80% of
the outstanding shares of Voting Stock (except for directors' qualifying shares)
of which is at the time owned directly or indirectly by the Company.
The Company shall not create, assume, incur or suffer to exist, as
security for indebtedness for borrowed money, any
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mortgage, pledge, encumbrance, lien or charge of any kind upon the Voting Stock
of Home Savings (other than directors' qualifying shares) without effectively
providing that the Securities shall be secured equally and ratably with (or
prior to) such indebtedness; provided, however, that the Company may create,
assume, incur or suffer to exist any such mortgage, pledge, encumbrance, lien or
charge without regard to the foregoing provisions so long as after giving effect
thereto the Company will own directly or indirectly at least 80% of the Voting
Stock of Home Savings then issued and outstanding, free and clear of any such
mortgage, pledge, encumbrance, lien or charge. For the purposes of this Section
1008, the term "Voting Stock" of any Person shall mean stock of any class or
classes, however designated, having ordinary voting power for the election of a
majority of the board of directors of such Person, other than stock having such
power only by reason of the happening of a contingency.
Notwithstanding the foregoing, the Company may avoid the restrictions
described in the previous two paragraphs if prior to any such transaction Home
Savings shall have unconditionally guaranteed payment when due of the principal
or premium, if any, and interest on the Securities, Home Savings shall have
obtained all regulatory approvals, if any, required to permit the guarantee of
the Securities, and the Company shall have delivered to the Trustee an Opinion
of Counsel stating that the guarantee of the Securities by Home Savings has been
duly authorized, executed and delivered and constitutes a valid, legally binding
and enforceable obligation of Home Savings.
Section 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1001 to 1003 and 1005 to
1008, inclusive, 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 shall, by Act of such Holders, either
waive such compliance in such instance or generally waive 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.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, 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, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor 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 that may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor 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 and specified tenor not previously called for
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redemption in accordance with the preceding sentence. If any Security selected
for partial redemption is converted in part before the termination of the
conversion right resulting from such selection, the converted portion of such
security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities that have been converted during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purposes of such selection.
The Trustee shall promptly notify the Company 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 amount of such Securities that has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his or her address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) if the Security is convertible, the conversion price, the date on
which the right to convert the principal of the Securities to be redeemed
will terminate and the place or places where such Securities may be
surrendered for conversion,
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(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,
(7) that the redemption is from a sinking fund, if such is the case,
and
(8) the CUSIP numbers of the 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 and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
that are to be redeemed on that date. If any Security called for redemption is
converted pursuant to Article Thirteen, any money deposited with the Trustee or
so segregated and held in trust for the redemption of such Security shall be
paid to the Company on Company Request, or if then held by the Company, shall be
discharged from such trust.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
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 as
otherwise provided herein, shall be void. Upon surrender of any such Security
for redemption in accordance with said notice, together will 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 accrued interest
to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable
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only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest 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 relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all pertinent 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 may 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 interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security that is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (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 or her 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 and of like tenor, 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.
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ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
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 any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund
Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of Bearer
Securities with all unmatured coupons appertaining thereto, and (2) may apply as
a credit Securities of a series that have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such 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.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company shall
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deliver to the Trustee an Officers' Certificate specifying the amount of the
next ensuing 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 Securities of that series pursuant to Section 1202 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
Section 1301. Applicability; Conversion Privilege and Conversion Price.
The provisions of this Article shall be applicable to any conversion
of the Securities of a series except as otherwise specified as contemplated by
Section 301 for Securities of such series.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof that is $1,000 or an integral multiple of $1,000 may be converted
at the principal amount thereof, or of such portion thereof, into fully paid and
nonassessable shares (calculated as to each conversion to the nearest 1/100 of a
share) of Common Stock of the Company, at the conversion price, determined as
hereinafter provided, in effect at the time of conversion. Such conversion
right shall expire at the close of business on the date specified for Securities
of such series. In case a Security or portion thereof is called for redemption
or is repurchased, such conversion right in respect of the Security or portion
so called shall expire at the close of business on the Redemption Date or the
repurchase date, unless the Company defaults in making the payment due upon
redemption or repurchase.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "conversion price") shall be the price specified
in relation to Securities of such series pursuant to Section 301. The
conversion price shall be
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reduced in certain instances as provided in paragraphs (1), (2), (3), (4), (5),
(6), (7) and (9) of Section 1304 and shall be increased in certain instances as
provided in paragraph (3) of Section 1304.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in paragraph (4) or (5) of Section
1304, the Holder of each Security, upon the conversion thereof pursuant to this
Article subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution and prior to
the effectiveness of the conversion price adjustment in respect of such
distribution pursuant to paragraph (4) or (5) of Section 1304, shall also be
entitled to receive for each share of Common Stock into which such Security is
converted, the portion of the evidences of indebtedness, shares of capital
stock, cash and assets so distributed applicable to one share of Common Stock,
provided that, at the election of the Company (whose election shall be evidenced
by a Board Resolution) with respect to all Holders so converting, the Company
may, in lieu of distributing to such Holder any portion of such distribution not
consisting of cash or securities of the Company, pay such Holder an amount in
cash equal to the fair market value thereof (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution). If any conversion of a Security described in the immediately
preceding sentence occurs prior to the payment date for a distribution to
holders of Common Stock that the Holder of the Security so converted is entitled
to receive in accordance with the immediately preceding sentence, the Company
may elect (such election to be evidenced by a Board Resolution) to distribute to
such Holder a due bill for the evidences of indebtedness, shares of capital
stock, cash or assets to which such Holder is so entitled, provided that such
due bill (i) meets any applicable requirements of the principal national
securities exchange or other market on which the Common Stock is then traded and
(ii) requires payment or delivery of such evidences of indebtedness, shares of
capital stock, cash or assets no later than the date of payment or delivery
thereof to holders of Common Stock receiving such distribution.
Section 1302. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank in the case of Registered Securities,
together in the case of Bearer Securities with all unmatured coupons and any
unmatured coupons in default appertaining thereto at any office or agency of the
Company maintained for that purpose pursuant to Section 1002,
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accompanied by written notice to the Company at such office or agency that the
Holder elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted.
Registered Securities surrendered for conversion during the period from the
close of business on any Regular Record Date next preceding any Interest payment
Date to the opening of business on such Interest Payment Date shall (except in
the case of Registered Securities or portions thereof that have been called for
redemption, or are to be repurchased, on such Interest Payment Date or on a
Redemption Date or a repurchase date within the period beginning on such Regular
Record Date and ending on such Interest Payment Date) be accompanied by payment
by wire transfer or certified check or other funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on the
principal amount of Securities being surrendered for conversion (or, if such
Registered Security was issued in exchange for a Bearer Security after the close
on such Regular Record Date, by surrender of one or more coupons relating to
such Interest Payment Date or by both payment in such funds and surrender of
such coupon or coupons, in either case, in an amount equal to the interest
payable on such Interest Payment Date on the principal amount of the Registered
Security then being converted). Except as provided in the preceding sentence
and subject to the fourth paragraph of Section 307, no payment or adjustment
shall be made upon any conversion on account of any interest accrued on the
Securities surrendered for conversion or on account of any dividends on the
Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the person or persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1303.
In the case of any Security that is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security, along with the
coupons appertaining thereto.
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Section 1303. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon conversion
of Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares that shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or, in the case of Registered Securities,
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock that would otherwise be issuable upon conversion of any Security or
securities (or, in the case of Registered Securities, specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction in
an amount equal to the same fraction of the Closing Price at the close of
business on the date of conversion.
Section 1304. Adjustment of Conversion Price.
(1) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in Common Stock or shall pay or
make a dividend or other distribution on any other class of capital stock of the
Company which dividend or distribution includes Common Stock, the conversion
price in effect at the opening of business on the day following the day fixed
for the determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion price by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day following
the date fixed for such determination. For the purposes of this paragraph (1),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company shall not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in
case the Company shall pay or make a dividend or other distribution on its
Common Stock consisting exclusively of, or shall otherwise issue to all holders
of its Common Stock, rights or warrants entitling the holders thereof to
subscribe for or purchase shares of Common Stock at a price per share less than
the current market price per share (determined as provided in paragraph (8) of
this Section) of the Common Stock on the date
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fixed for the determination of stockholders entitled to receive such rights or
warrants, the conversion price in effect at the opening of business on the day
following the date fixed for such determination shall be reduced by multiplying
such conversion price by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such current market price
and the denominator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination plus the number
of shares of Common Stock so offered for subscription or purchase, such
reduction to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes of this
paragraph (2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company shall not issue any rights or warrants in
respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the conversion price in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and, conversely,
in case outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the conversion price in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(4) Subject to the last sentence of this paragraph (4), in case the
Company shall, by dividend or otherwise, distribute to all holders of its Common
Stock evidences of its indebtedness, shares of any class of capital stock, cash
or assets (including securities, but excluding any rights or warrants referred
to in paragraph (2) of this Section, excluding any dividend or distribution paid
exclusively in cash and excluding any dividend or distribution referred to in
paragraph (1) of this Section), the conversion price shall be reduced so that
the same shall equal the price determined by multiplying the conversion price in
effect immediately prior to the effectiveness of the conversion price reduction
contemplated by this paragraph (4) by a fraction of which the numerator shall be
the current
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market price per share (determined as provided in paragraph (8) of this Section)
of the Common Stock on the date of such effectiveness less the fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution), on the date of such
effectiveness, of the portion of the evidences of indebtedness, shares of
capital stock, cash and assets so distributed applicable to one share of Common
Stock and the denominator shall be such current market price per share of the
Common Stock, such reduction to become effective immediately prior to the
opening of business on the day following the later of (a) the date fixed for the
payment of such distribution and (b) the date 20 days after the notice relating
to such distribution is given pursuant to Section 1306(a) (such later date of
(a) and (b) being referred to as the "Reference Date"). If the Board of
Directors determines the fair market value of any distribution for purposes of
this paragraph (4) by reference to the actual or when issued trading market for
any securities comprising such distribution, it must in doing so consider the
prices in such market over the same period used in computing the current market
price per share pursuant to paragraph (8) of this Section. For purposes of this
paragraph (4), any dividend or distribution that includes shares of Common
Stock, rights or warrants to subscribe for or purchase shares of Common Stock or
other securities convertible into or exchangeable for shares of Common Stock
shall be deemed instead to be (a) a dividend or distribution of the evidences of
indebtedness, cash, assets or shares of capital stock other than such shares of
Common Stock, such rights or warrants or such other convertible or exchangeable
securities (making any conversion price reduction required by this paragraph
(4)), immediately followed by (b) in the case of such shares of Common Stock or
such rights or warrants, a dividend or distribution thereof (making any further
conversion price reduction required by paragraph (1) or (2) of this Section,
except (i) the Reference Date of such dividend or distribution as defined in
this paragraph (4) shall be substituted for "the date fixed for the
determination of stockholders entitled to receive such distribution" and "the
date fixed for such determination" within the meaning of paragraphs (1) and (2)
of this Section and (ii) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of paragraph (1) of this
Section) or (c) in the case of such other convertible or exchangeable
securities, a dividend or distribution of such number of shares of Common Stock
as would then be issuable upon the conversion or exchange thereof, whether or
not the conversion or exchange of such securities is subject to any conditions
(making any further conversion price reduction required by paragraph (1) of this
Section, except (i) the Reference Date of such dividend or distribution as
defined in this paragraph (4) shall be substituted as "the date fixed for
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the determination of stockholders entitled to receive such distribution" and
"the date fixed for such determination" and (ii) the shares deemed to constitute
such dividend or distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination", each within the meaning of
paragraph (1) of this Section).
(5) In case the Company shall, by dividend or otherwise, at any time
distribute to all holders of its Common Stock cash (excluding any cash that is
distributed as part of a distribution referred to in paragraph (4) of this
Section) in an aggregate amount that, together with (i) the aggregate amount of
any other distributions to all holders of its Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such distribution and
in respect of which no conversion price adjustment pursuant to this paragraph
(5) has been made and (ii) the aggregate of any cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of consideration payable in
respect of any tender offer by the Company or a Subsidiary for all or any
portion of the Company's Common Stock concluded within the 12 months preceding
the date of payment of such distribution and in respect of which no conversion
price adjustment pursuant to paragraph (6) of this Section has been made,
exceeds 10% of the product of the current market price per share (determined as
provided in paragraph (8) of this Section) of the Common Stock on the date fixed
for stockholders entitled to receive such distribution, times the number of
shares of Common Stock outstanding on such date, the conversion price shall be
reduced so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the effectiveness of the
conversion price reduction contemplated by this paragraph (5) by a fraction of
which the numerator shall be the current market price per share (determined as
provided in paragraph (8) of this Section) of the Common Stock on the date of
such effectiveness less the amount of cash so distributed applicable to one
share of Common Stock and the denominator shall be such current market price per
share of the Common Stock, such reduction to become effective immediately prior
to the opening of business on the later of (a) the day following the date fixed
for the payment of such distribution and (b) the date 20 days after the notice
relating to such distribution is given pursuant to Section 1306(a).
(6) In case a tender offer made by the Company or any Subsidiary for
all or any portion of the Company's Common Stock shall expire and such tender
offer shall involve an aggregate consideration having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) on the last time (the
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"Expiration Time") tenders may be made pursuant to such tender offer (as it may
be amended) that, together with (i) the aggregate of the cash plus the fair
market value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution), as of the expiration of such
tender offer, of consideration payable in respect of any tender offer by the
Company, or a Subsidiary for all or any portion of the Company's Common Stock
expiring within the 12 months preceding the expiration of such tender offer and
in respect of which no conversion price adjustment pursuant to this paragraph
(6) has been made and (ii) the aggregate amount of any distributions to all
holders of the Company's Common Stock made exclusively in cash within the 12
months preceding the expiration of such tender offer and in respect of which no
conversion price adjustment pursuant to paragraph (5) of this Section has been
made, exceeds 5% of the product of the current market price per share determined
as provided in paragraph (8) of this Section) of the Common Stock on the
Expiration Time times the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time, the conversion price
shall be reduced so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to the Expiration
Time by a fraction of which the numerator shall be (i) the product of the
current market price per share (determined as provided in paragraph (8) of this
Section) of the Common Stock on the Expiration Time times the number of shares
of Common Stock outstanding (including any tendered shares) on the Expiration
Time key minus (ii) the fair market value (determined as aforesaid) of the
aggregate consideration payable to stockholders based on the acceptance (up to
any maximum specified in the terms of the tender offer) of all shares validly
tendered and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased Shares")
and the denominator shall be the product of (i) such current market price per
share on the Expiration Time times (ii) such number of outstanding shares on the
Expiration Time less the number of Purchased Shares, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Time. No such adjustment shall be made in the event of any purchase
pursuant to Rule 10b-18 under the Exchange Act.
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 1310 applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the Reference Date" within the meaning of paragraph (4) of this
Section), and (b) a subdivision or combination, as the Case may be, of the
number of
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shares of Common Stock outstanding immediately prior to such reclassification
into the number of shares of Common Stock outstanding immediately thereafter
(and the effective date of such reclassification shall be deemed to be "the day
upon which such subdivision becomes effective", or "the day upon which such
combination becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of paragraph
(3) of this Section). Rights or warrants issued by the Company to all holders
of its Common Stock entitling the holders thereof to subscribe for or purchase
shares of Common Stock, which rights or warrants (i) are deemed to be
transferred with such shares of Common Stock, (ii) are exercisable and (iii) are
also issued in respect of future issuances of Common Stock, in each case in
clauses (i) through (iii) until the occurrence of a specified event or events
("Trigger Event"), shall for purposes of this Section 1304 not be deemed issued
and the distribution thereof not be deemed made or paid until the occurrence of
the earliest Trigger Event.
(8) For the purpose of any computation under this paragraph and
paragraphs (2), (4) and (5) of this Section, the current market price per share
of Common Stock on any date shall be deemed to be the average of the Closing
Prices for the five consecutive Trading Days selected by the Company commencing
not more than 20 Trading Days before, and ending not later than, the date in
question; provided, however, that (i) if the "ex" date for any event (other than
the issuance or distribution requiring such computation) that requires an
adjustment to the conversion price occurs on or after the 20th Trading Day prior
to the day in question and prior to the "ex" date for the issuance or
distribution requiring such computation, the Closing Price for each Trading Day
prior to the "ex" date for such other event shall be adjusted by multiplying
such Closing Price by the same fraction by which the conversion price is so
required to be adjusted as a result of such other event, (ii) if the "ex" date
for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the conversion price occurs on or
after the "ex" date for the issuance or distribution requiring such computation
and on or prior to the day in question, the Closing Price for each Trading Day
on and after the "ex" date for such other event shall be adjusted by multiplying
such Closing Price by the reciprocal of the fraction by which the conversion
price is so required to be adjusted as a result of such other event and (iii) if
the "ex" date for the issuance or distribution requiring such computation is on
or prior to the day in question, after taking into account any adjustment
required pursuant to clause (ii) of this proviso, the Closing Price for each
Trading Day on or after such "ex" date shall be adjusted by adding thereto the
amount of any cash and the fair market value on the day in question (as
determined by the Board of Directors in a manner consistent with any
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determination of such value for purposes of paragraph (4) or (5) of this
Section, whose determination shall be conclusive and described in a Board
Resolution) of the evidences of indebtedness, shares of capital stock or assets
being distributed applicable to one share of Common Stock as of the close of
business on the day before such "ex" date. For the purpose of any computation
under Paragraph (6) of this Section, the current market price per share of
Common Stock on any date shall be deemed to be the average of the daily Closing
Prices for the five consecutive Trading Days selected by the Company commencing
on or after the latest (the "Commencement Date") of (i) the date 20 Trading Days
before the date in question, (ii) the date of commencement of the tender offer
requiring such computation and (iii) the date of the last amendment, if any, of
such tender offer involving a change in the maximum number of shares for which
tenders are sought or a change in the consideration offered, and ending not
later than the Expiration Time of such tender offer; provided, however, that if
the "ex" date for any such event (other than the tender offer requiring such
computation) that requires an adjustment to the conversion price occurs on or
after the Commencement Date and prior to the Expiration Time for the tender
offer requiring such computation, the Closing Price for each Trading Day prior
to the "ex" date for such other event shall be adjusted by multiplying such
Closing Price by the same fraction by which the conversion price is so required
to be adjusted as a result of such other event. For purposes of this paragraph
the term "'ex' date", (i) when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades regular way
on the relevant exchange or in the relevant market from which the Closing price
was obtained without the right to receive such issuance or distribution, (ii)
when used with respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades regular way on such
exchange or in such market after the time at which such subdivision or
combination becomes effective and (iii) when used with respect to any tender
offer means the first date on which the Common Stock trades regular way on such
exchange or in such market after the Expiration Time of such tender offer.
(9) The Company may make such reductions in the conversion price, in
addition to those required by this Section, as it considers to be advisable in
order that any event treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
(10) No adjustment in the conversion price shall be required unless
such adjustment would required an increase or decrease of at least 1% in the
conversion price; provided, however, that any adjustments which by reason of
this paragraph
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(10) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment.
(11) Notwithstanding any other provision of this Section 1304, no
adjustment to the conversion price shall reduce the conversion price below the
then par value per share of the Common Stock, and any such purported adjustment
shall instead reduce the conversion price to such par value. The Company hereby
covenants not to take any action that would or does result in any adjustment in
the conversion price that, if made without giving effect to the previous
sentence, would cause the conversion price to be less than the then par value
per share of the Common Stock.
Section 1305. Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided and at
such other times as the Trustee shall request:
(a) the Company shall compute the adjusted conversion price
in accordance with Section 1304 and shall prepare a certificate signed
by the Treasurer of the Company setting forth the adjusted conversion
price and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith be delivered
to the Trustee and filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 1002; and
(b) a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price shall
forthwith be required, and, when the conversion price is adjusted, as
soon as practicable after it is required, the Company shall cause such
notice to be mailed to all Holders of Registered Securities at their
last addresses as they shall appear in the Security Register.
Section 1306. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out
of its retained earnings; or
(b) the Company shall authorize the granting to the holders
of its Common Stock generally of rights
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or warrants to subscribe for or purchase any shares of capital stock
of any class or of any other rights; or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its outstanding
shares of Common Stock), or of any consolidation or merger to which
the Company is a party and for which approval of any stockholders of
the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(e) the Company or any Subsidiary shall commence a tender
offer for all or a portion of the Company's outstanding shares of
Common Stock (or shall amend any such tender offer);
then the Company shall notify the Trustee and cause to be filed at each office
or agency maintained for the purpose of conversion of securities pursuant to
Section 1002, and shall cause to be mailed to all Holders of Registered
Securities at their last addresses as they shall appear in the Security
Register, at least 20 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined or (y) the
date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up, or (z) the date on which such
tender offer commenced, the date on which such tender offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto).
Section 1307. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but
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unissued Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable upon the
conversion of all outstanding Securities.
Section 1308. Taxes on Conversions.
The Company will pay any and all taxes, other than any franchise or
income taxes, that may be payable in respect of the issue or delivery of shares
of Common stock on conversion of Securities pursuant hereto. The Company shall
not, however, be required to pay any tax that may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
Section 1309. Covenant as to Common Stock.
The Company covenants that all shares of Common Stock that may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 1308, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
Section 1310. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
Section 1311. Provisions in the Case of Consolidation,
Merger or Sales of Assets.
In case of any consolidation of the Company with, or merger of the
Company into, any other corporation, or in case of any merger of another
corporation into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), or in case of any sale or transfer of all or
substantially all of the assets of the Company, the corporation formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and
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deliver to the trustee a supplemental indenture providing that the Holder of
each Security then outstanding shall have the right thereafter, during the
period such Security shall be convertible as specified in Section 1301, to
convert such Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by a
holder of the number of shares of Common Stock of the Company into which such
Security might have been converted immediately prior to such consolidation,
merger, sale or transfer, assuming such holder of Common Stock of the Company
failed to exercise his or her rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer is not the same for each share of Common Stock of the company
in respect of which such rights of election shall not have been exercised ("non-
electing share"), then for the purpose of this Section the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer by each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing shares).
Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Company's Option to Effect Defeasance
or Covenant Defeasance.
The Company may elect, at its option by Board Resolution at any time,
to have either Section 1402 or Section 1403 applied to the Outstanding
Securities of any series designated pursuant to Section 301 as being defeasible
pursuant to this Article Fourteen (hereinafter called a "Defeasible Series"),
upon compliance with the conditions set forth below in this Article Fourteen.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1401 to
have this Section 1402 applied to the Outstanding
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Securities of any Defeasible Series, the Company shall be deemed to have been
discharged from its obligations, and the provisions of Article Fifteen shall
cease to be effective, with respect to the Outstanding Securities of such series
as provided in this Section on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter called "Defeasance"). For this purpose,
such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and any related coupons and to have satisfied all its other
obligations under the Securities of such series, and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Securities of such series to receive,
solely from the trust fund described in Section 1404 and as more fully set forth
in such Section, payments in respect of the principal of and any premium and
interest on such Securities of such series when payments are due, (2) the
Company's obligations with respect to the Securities of such series under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article Fourteen. Subject
to compliance with this Article Fourteen, the Company may exercise its option
provided in Section 1401 to have this Section 1402 applied to the Outstanding
Securities of any Defeasible Series notwithstanding the prior exercise of its
option provided in Section 1401 to have Section 1403 applied to the Outstanding
Securities of such series.
Section 1403. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1401 to
have this Section 1403 applied to the Outstanding Securities of any Defeasible
Series, (1) the Company shall be released from its obligations under Sections
1005 through 1008, inclusive, (2) the occurrence of any event specified in
Sections 501(4) (with respect to any of Sections 1005 through 1008, inclusive),
501(5) and 501(8) shall be deemed not to be or result in an Event of Default and
(3) the provisions of Article Fifteen shall cease to be effective, in each case
with respect to the Outstanding Securities of such series as provided in this
Section on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that 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 specified Section (to the extent so specified in the case of Section
501(4)) or Article Fifteen, whether directly or indirectly by
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reason of any reference elsewhere herein to any such Section or Article or by
reason of any reference in any such Section or Article to any other provision
herein or in any other document, but the remainder of this Indenture and the
Securities of such series shall be unaffected thereby.
Section 1404. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions to application of either Section
1402 or Section 1403 to the Outstanding Securities of any Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article Fourteen 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 Outstanding Securities of such series, (A) money in an amount,
or (B) U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof (without consideration of any
reinvestment thereof) in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount,
or (C) a combination thereof, in each case sufficient, 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 that shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium
and interest on the Securities of such series on the respective Stated
Maturities, in accordance with the terms of this Indenture and the
Securities of such series. As used herein, "U.S. Government Obligation"
means (x) any security that is (i) a direct obligation of the United States
of America for the payment of which the full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any U.S. Government Obligation specified in Clause (x) and
held by such custodian for the
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account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such U.S. Government
Obligation; provided, however, 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 U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
(2) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date first set forth hereinabove,
there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
gain or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit.
(5) No Event of Default or event that (after notice or lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 501(6) and (7), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
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(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
(9) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified under such Act or exempt from regulation
thereunder.
(10) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Indebtedness shall have
occurred and be continuing, (B) no event of default with respect to any
Senior Indebtedness shall have resulted in such Senior Indebtedness
becoming, and continuing to be, due and payable prior to the date on which
it would otherwise have become due and payable (unless payment of such
Senior Indebtedness has been made or duly provided for), and (C) no other
event of default with respect to any Senior Indebtedness shall have
occurred and be continuing permitting (after notice or lapse of time or
both) the holders of such Senior Indebtedness (or a trustee on behalf of
such holders) to declare such Senior Indebtedness due and payable prior to
the date on which it would otherwise have become due and payable.
Section 1405. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes
of this Section and Section 1406, the Trustee and any such other trustee
are referred to collectively as the "Trustee") pursuant to Section 1404 in
respect of the Securities of any Defeasible Series shall be held in trust
and applied by the Trustee, in accordance with the
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provisions of the Securities of such series and this Indenture, to the
payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to
the Holders of Securities of such series, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so
held in trust need not be segregated from other funds except to the extent
required by law. Money and U.S. Government Obligations so held in trust
shall not be subject to the provisions of Article Fifteen.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1404 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge that by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time
to time upon Company Request any money or U.S. Government Obligations held
by it as provided in Section 1404 with respect to Securities of any
Defeasible Series that, 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 that would
then be required to be deposited to effect an equivalent Defeasance or
Covenant Defeasance with respect to the Securities of such series.
The provisions for subordination of the Securities set forth in
Article Fifteen are hereby expressly made subject to the provisions for
defeasance or covenant defeasance in this Article Fourteen and, anything
herein to the contrary notwithstanding, upon the effectiveness of such
defeasance or covenant defeasance with respect to the Outstanding
Securities, such Securities shall thereupon cease to be so subordinated.
Section 1406. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article Fourteen with respect to the Securities of
any series by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities of
such series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Fourteen with respect to Securities of
such series until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust
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pursuant to Section 1405 with respect to Securities of such series in
accordance with this Article Fourteen; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any
Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Securities of
such series to receive such payment from the money so held in trust.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
Section 1501. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security,
by his or her acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article, the
indebtedness represented by the Securities and the payment of the principal
of and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness. The provisions of this Article Fifteen are
subject to the final paragraph of Section 1405.
Section 1502. Payment Over of Proceeds Upon Dissolution, Etc.
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 the Company
or to its creditors, as such, or to its assets, or (b) any liquidation,
dissolution or other winding up of the Company, 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 the Company, 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 before the Holders of the Securities and any coupons
appurtenant thereto are entitled to receive any payment on account of
principal of or interest on the 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 that may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of
the Securities, which may be payable or deliverable in respect of the
Securities in any such
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case, proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received
any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution that may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being subordinated to the
payment of the Securities, before all Senior Indebtedness is paid in full,
and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or, as the case may be,
such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the Holders of Senior
Indebtedness.
For purposes of this Article only, 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 or reorganization or readjustment that
are subordinated in right of payment to all Senior Indebtedness that may at
the time be outstanding to substantially the same extent as, or to a
greater extent than, the Securities are so subordinated as provided in this
Article. The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the
Company following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment for the benefit of
creditors or marshalling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person that acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the
case may be, shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions set forth in Article Eight.
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Section 1503. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities.
In the event that any Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of the
Senior Indebtedness shall be entitled to receive payment in full of all
amounts due on or in respect of all Senior Indebtedness before the Holders
of the Securities are entitled to receive any payment (including any
payment that may be payable by reason of the payment of any other
indebtedness of the Company being subordinated to the payment of the
Securities) by the Company on account of the principal of or interest on
the Securities or on account of the purchase or other acquisition of
Securities or Securities which have been converted pursuant to Article 13.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such fact
shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 1502 would be applicable.
Section 1504. No Payment When Senior Indebtedness
in Default.
(a) In the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or in
the event that any event of default with respect to any Senior Indebtedness
shall have occurred and be continuing permitting the holders of such Senior
Indebtedness (or a trustee on behalf of the holders thereof) to declare
such Senior Indebtedness due and payable prior to the date on which it
would otherwise have become due and payable, and unless and until such
event of default shall have been cured or waived or shall have ceased to
exist, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or event of default, then no payment
(including any payment that may be payable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities) shall be made by the Company on account of principal of or
interest on the Securities and any coupon appurtenant thereto or on account
of the purchase or other acquisition of Securities.
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In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security or
coupon prohibited by the foregoing provisions of this Section, and if such
fact shall, at or prior to the time of such payment, have been made known
to the Trustee or, as the case may be, such Holder, then and in such event
such payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 1502 would be applicable.
Section 1505. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshalling of assets and liabilities of the Company referred to in
Section 1502 or under the conditions described in Section 1503 or 1504,
from making payments at any time of principal of or interest on the
Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of or
interest on the Securities or the retention of such payment by the Holders,
if, at the time of such application by the Trustee, it did not have
knowledge as provided in Section 1510 that such payment would have been
prohibited by the provisions of this Article.
Section 1506. Subrogation to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities and any coupons appurtenant thereto shall be
subrogated (equally and ratably with the holders of all indebtedness of the
Company that by its express terms is subordinated to indebtedness of the
Company to substantially the same extent as the Securities are subordinated
and is entitled to like rights of subrogation) to the rights of the holders
of such Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness until the
principal of and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders
of the Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions
of this Article to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee,
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shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness.
Section 1507. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as among
the Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional (and which, subject to the rights under this
Article of the holders of Senior Indebtedness, is intended to the fullest
extent permitted by law to rank equally with all other general obligations
of the Company), to pay to the Holders of the Securities the principal of
and interest on the Securities as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against the Company of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness; or (c) 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 of the holders of Senior
Indebtedness to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 1508. Trustee to Effectuate Subordination.
Each holder of a Security by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided
in this Article and appoints the Trustee his or her attorney-in-fact for
any and all such purposes.
Section 1509. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any non-compliance by the Company with the terms,
provisions and
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covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders
of the Securities and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Holders of the
Securities to the holders of 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, Senior Indebtedness, or otherwise
amend or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 1510. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company that would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness
or from any trustee therefor, and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided
for in this Section 1510 at least three Business 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 interest
on any Security), 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 purpose for which such money was
received and shall not be affected by any notice to the contrary that may
be received by it during or after such three Business Day period.
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Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Indebtedness (or a
trustee therefor) to establish that such notice has been given by a holder
of Senior Indebtedness (or a trustee therefor). 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 Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, 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 1511. Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Section 601, and the Holders of the Securities shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this
Article.
Section 1512. Trustee Not Fiduciary for Holders
of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not liable to any such holders if
it shall in good faith mistakenly pay over or distribute to Holders of
Securities or coupons or to the Company or to any other Person cash,
property or securities to
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which any holders of Senior Indebtedness shall be entitled by virtue of
this Article or otherwise.
Section 1513. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior
Indebtedness that may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
Section 1514. Article Applicable to Payment Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1513 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1601. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable in whole or in part as
Bearer Securities, a meeting of Holders of Securities of such 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 1602. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series issuable as Bearer Securities
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for any purpose specified in Section 1601, to be held at such time and at
such place in the City of Los Angeles, the Borough of Manhattan, The City
of New York, or as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 106, not
less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, 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 1601, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not have made the first publication of the notice of such meeting
within 21 days after receipt of such request 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 place in the City
of Los Angeles, the Borough of Manhattan or The City of New York for such
meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
Section 1603. 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 1604. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be
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dissolved. In the absence of a quorum 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 adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 1602(a), 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 provisos to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by
the provisos to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote or the Holders of such
specified percentage in principal amount of the Outstanding Securities of
that 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 related
coupons, whether or not present or represented at the meeting.
Section 1605. Determination of Voting Rights;
Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy
shall be proved in the manner
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specified in Section 104 or, in the case of Bearer Securities, by having
the signature of the person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 104 to certify to
the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1602(b), 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 chairperson. A permanent chairperson 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.
(c) 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 (or
the equivalent in ECU, any other composite currency or a Foreign Currency)
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 chairperson of the
meeting not to be Outstanding. The chairperson of the meeting shall have
no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1602 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 to adjourned without further
notice.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
H. F. AHMANSON & COMPANY
By ___________________________
Attest:
___________________________
THE FIRST NATIONAL BANK OF CHICAGO
By ___________________________
Attest:
___________________________
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EXHIBIT A-1
[FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP BY A
NON-UNITED STATES PERSON OR BY CERTAIN OTHER PERSONS]
CERTIFICATE
H. F. AHMANSON & COMPANY
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF
SECURITIES TO BE DELIVERED]
Reference is hereby made to the Indenture dated as of ______________
(the "Indenture") between H. F. Ahmanson & Company, a Delaware corporation, and
_____________________, as trustee (the "Trustee") covering the above-captioned
Securities. This is to certify that as of the date hereof, _______________
principal amount of Securities credited to you for our account (i) is owned by
persons that are not United States Persons, as defined below; (ii) is owned by
United States Persons that are (a) foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(i)(v))
("financial institutions") purchasing for their own account or for resale, or
(b) United States Persons who acquired the Notes through foreign branches of
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution encloses herewith a
certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section 1.153-
5(c)(2)(i)(D)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Notes for purposes of resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions.
[Insert if certificate does not relate to an interest payment - We
undertake to advise you by tested telex followed by written confirmation if the
above statement as to beneficial ownership is not correct on the date of
delivery of the above-captioned Securities in bearer form as to all of such
Securities with respect to such of said Securities as then appear in your books
as being held for our account.] We understand that this certificate is required
in connection with United States tax laws. We irrevocably authorize you to
produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
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certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income.
[This certificate excepts and does not relate to _______________
principal amount of Securities credited to you for our account and to which we
are not now able to make the certification set forth above. We understand that
definitive Securities cannot be delivered and interest cannot be paid until we
are able to so certify with respect to such principal amount of Securities.]/*/
/*/ Delete if inappropriate
Dated:___________________
[To be dated on or after
______________________(the
date determined as provided
in the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
--------------------------------------------------
(Authorized Signatory)
Name:_________________________
Title:________________________
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EXHIBIT A-2
[FORM OF CERTIFICATE OF STATUS AS A FOREIGN BRANCH OF A UNITED STATES
FINANCIAL INSTITUTION]
CERTIFICATE
H. F. AHMANSON & COMPANY
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF
SECURITIES TO BE DELIVERED]
Reference is hereby made to the Indenture dated as of _______________,
the ("Indenture"), between H. F. Ahmanson & Company and ______________________,
as Trustee, relating to the offering of the above-captioned Securities (the
"Securities"). Unless herein defined, terms used herein have the same meaning
as given to them in the Indenture.
The undersigned represents that it is a branch located outside the
United States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulations Section 1.165-
12(c)(1)(v)) that holds customers' securities in the ordinary course of its
trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any
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interested party in any administrative or legal proceedings with respect to the
matters covered by this certificate.
Dated:__________________
[To be dated on or after
____________________ (the
date determined as provided
in the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
--------------------------------------------------
(Authorized Signatory)
Name:_________________________
Title:________________________
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EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
ALL OR A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PRIOR TO EXCHANGE]
CERTIFICATE
H. F. AHMANSON & COMPANY
[INSERT TITLE OF SECURITIES TO BE DELIVERED]
We refer to that portion, _____________, of the Global Security
representing the above-captioned issue [which is herewith submitted to be
exchanged for definitive Securities] [for which we are seeking to obtain payment
of interest] (the "Submitted Portion"). This is to certify, pursuant to the
Indenture dated ____________ (the "Indenture") between H. F. Ahmanson & Company
and ______________________, as Trustee (the "Trustee), that we have received in
writing, by tested telex or by electronic transmission from member organizations
with respect to each of the persons appearing in our records as being entitled
to a beneficial interest in the Submitted Portion a Certificate of Beneficial
Ownership by a Non-United States Person or by Certain Other Person, [and, in
some cases, a Certificate of Status as a Foreign Branch of a United States
Financial Institution, authorizing us to inform the issuer or issuer's agent
that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986 and the regulations thereunder] substantially
in the form of Exhibit A-1 [and A-2] to the Indenture.
We hereby request that you deliver to the office of
____________________ in _________________ definitive Bearer Securities in the
denominations on the attached Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with
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respect to any part of the Submitted Portion are no longer true and cannot be
relied on as of the date hereof.
Dated:__________________________
[Morgan Guaranty Trust
Company of New York, Brussels
Office, as operator of the
Euroclear System]
[Cedel S.A.]
By:________________________
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<PAGE>
[FORM OF NOTE]
H. F. AHMANSON & COMPANY
7.875% Subordinated Notes due September 1, 2004
No. R-1 $125,000,000
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR
OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY
SAVINGS BANK OR NON-BANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND, SAVINGS ASSOCIATION
INSURANCE FUND OR ANY OTHER GOVERNMENT AGENCY.
H. F. AHMANSON & COMPANY, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ONE HUNDRED TWENTY-FIVE MILLION DOLLARS ($125,000,000) on
September 1, 2004, and to pay interest thereon from August 31, 1994 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on March 1 and September 1 in each year, commencing
March 1, 1995, at the rate of 7.875% per annum, until the principal hereof is
paid or made available for payment. 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 Security (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 February 15 or August
15 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (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 Trustee, notice whereof shall be given to Holders of Securities
<PAGE>
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment of the principal of and interest on this Security will be made
on each Interest Payment Date or at Maturity by the Trustee as Paying Agent by
wire transfer of immediately available funds to a separate account of the
Depositary or its nominee at the Federal Reserve Bank of New York, provided
that, in the case of payments made at maturity of this Security, this Security
is presented to the Trustee in time for the Trustee to make such payments in
accordance with its normal procedures.
This Security is unsecured and is not redeemable (whether through
operation of a sinking fund or otherwise) at the option of the Holder or the
Company prior to its Stated Maturity.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: August 31, 1994
H. F. AHMANSON & COMPANY
By: ___________________________
Attest:
__________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By: ______________________________
3
<PAGE>
(REVERSE OF SECURITY)
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of August 24, 1994 and all indentures
supplemental thereto (herein called the "Indenture"), between the Company and
The First National Bank of Chicago, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof
limited in aggregate principal amount to One Hundred Twenty-Five Million Dollars
($125,000,000).
The indebtedness evidenced by this Security is subordinate and subject
in right of payment to the prior payment in full of all Senior Indebtedness, and
this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes.
The Indenture contains provisions for defeasance at any time of (1)
the entire indebtedness of this Security or (2) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series 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 to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
4
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with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security 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 Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or interest hereon on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
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
Security at the times, places and rates, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and interest
on this Security 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 his or her attorney duly
authorized in writing, and thereupon one or more new Securities 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.
5
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The Securities of this series are issuable only in registered form
without coupons in denominations of $100,000 and any integral multiple of $1,000
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge 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.
Prior to due presentment of this 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 this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________ the within note of H. F.
Ahmanson & Company and hereby irrevocably constitutes and appoints
_____________________________ attorney to transfer said note on the books of the
within-named Company with full power of substitution in the premises.
Dated:_____________________
______________________________
6
