<PAGE> 1
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) April 4, 1995
-------------------------------
H. F. Ahmanson & Company
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in charter)
Delaware 1-8930 95-0479700
- -------------------------------------------------------------------------------
(State or other jurisdiction of (Commission file number) (IRS employer
incorporation) identification no.)
4900 Rivergrade Road, Irwindale, California 91706
- --------------------------------------------------------------------------------
(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)
<PAGE> 2
ITEM 5. OTHER EVENTS.
On April 4, 1995, H. F. Ahmanson & Company (the "Company")
executed a Distribution Agreement with Lehman Brothers Inc., Bear, Stearns &
Co. Inc., CS First Boston Corporation and Merrill Lynch & Co. (the
"Distribution Agreement"), relating to the issuance from time to time of
$500,000,000 in aggregate principal amount of the Company's Medium-Term Notes,
Series A, previously registered by the Company on a Registration Statement on
Form S-3 (Registration No. 33-57395). Attached to this report as exhibits for
filing with the Securities and Exchange Commission are final copies of the
executed Distribution Agreement, the Indenture, the forms of Fixed Rate and
Floating Rate Notes and the opinion of Gibson, Dunn & Crutcher regarding tax
matters.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits:
1.1 Distribution Agreement, dated April 4, 1995,
relating to Medium-Term Notes, Series A, by and among
H. F. Ahmanson & Company, Lehman Brothers Inc., Bear,
Stearns & Co. Inc., CS First Boston Corporation and
Merrill Lynch & Co.
4.1 Indenture dated as of April 4, 1995 by and between
H. F. Ahmanson & Company and Citibank, N.A., Trustee.
4.2 Form of Fixed Rate Note.
4.3 Form of Floating Rate Note.
8.1 Opinion of Gibson, Dunn & Crutcher regarding tax
matters.
2
<PAGE> 3
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: April 4, 1995
H.F. AHMANSON & COMPANY
By: /s/ Tim S. Glassett
----------------------------
Senior Vice President
3
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NO. DESCRIPTION NUMBERED PAGE
- ----------- ----------- -------------
<S> <C> <C>
1.1 Distribution Agreement, dated April 4, 1995, relating to Medium-
Term Notes, Series A, by and among H. F. Ahmanson & Company,
Lehman Brothers Inc., Bear, Stearns & Co. Inc., CS First Boston
Corporation and Merrill Lynch & Co.
4.1 Indenture dated as of April 4, 1995 by and between H. F.
Ahmanson & Company and Citibank, N.A., Trustee.
4.2 Form of Fixed Rate Note.
4.3 Form of Floating Rate Note.
8.1 Opinion of Gibson, Dunn & Crutcher regarding tax matters
</TABLE>
4
<PAGE> 1
EXHIBIT 1.1
$500,000,000
H. F. AHMANSON & COMPANY
MEDIUM-TERM NOTES, SERIES A
DISTRIBUTION AGREEMENT
April 4, 1995
Lehman Brothers
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, New York 10285-1200
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
CS First Boston Corporation
Park Avenue Plaza
New York, New York 10055
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower, World Financial Center
New York, New York 10281
Dear Sirs:
H. F. Ahmanson & Company, a Delaware corporation (the "Company"),
confirms its agreement with each of you (individually, an "Agent" and
collectively, the "Agents") (which terms shall, for all purposes of this
Agreement, include Lehman Government Securities Inc., an affiliate of Lehman
Brothers Inc.) with respect to the issuance and sale by the Company of up to
an aggregate of $500,000,000 in gross proceeds of its Medium-Term Notes,
Series A (the "Notes"). The Notes are to be issued from time to time pursuant
to an indenture, dated as of April 4, 1995 (as it may be supplemented or
amended from time to time, the "Indenture"), between the Company and Citibank,
N.A., as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, issue price, redemption and repayment provisions and
other terms set forth in the Prospectus referred to in Section 1(a) as it may
be amended or supplemented from time to time, including any supplement
providing for the interest rate, maturity and other terms of any Note (a
"Pricing Supplement"). The Notes will be issued, and the terms thereof
established, from time to time, by the Company in accordance with the
Indenture and the Procedures referred to below. This Agreement shall only
apply to sales of the Notes
<PAGE> 2
and not to sales of any other securities or evidences of indebtedness of the
Company and only on the specific terms set forth herein.
Subject to the terms and conditions stated herein and to the reservation
by the Company of the right to sell its Notes directly on its own behalf, the
Company hereby (i) appoints each of the Agents as the agent of the Company for
the purpose of soliciting and receiving offers to purchase Notes from the
Company and (ii) agrees that whenever the Company determines to sell Notes
directly to an Agent as principal it will enter into a separate agreement
(each a "Purchase Agreement"). Each such Purchase Agreement, whether oral (and
confirmed in writing, which may be by facsimile transmission) or in writing,
shall be with respect to such information (as applicable) as specified in
Exhibit C hereto, relating to such sale in accordance with Section 2(e)
hereof.
SECTION 1. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent as of the date hereof,
as of the Closing Date (defined herein) and as of the times referred to in
Sections 6(a) and 6(b) hereof (the Closing Date and each such time being
hereinafter sometimes referred to as a "Representation Date"), as follows:
(a) General. The registration statement (No. 33-57395) relating to the
Notes (including a prospectus which, as supplemented, shall be used in
connection with sales of the Notes) 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. As used in this Agreement (i) "Registration Statement" means such
registration statement when it became effective under the Act, and as from
time to time amended or supplemented thereafter (if any post-effective
amendment to such registration statement has been filed with the Commission
prior to the execution and delivery of this Agreement, the time the most
recent such amendment has been declared effective by the Commission); (ii)
"Basic Prospectus" means the prospectus (including all documents incorporated
therein by reference) included in the Registration Statement; and (iii)
"Prospectus" means the Basic Prospectus (together with all documents
incorporated therein by reference) and any amendments or supplements thereto
(including the applicable Pricing Supplement) relating to the Notes, as filed
with the Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations (defined below). The Commission has not issued any order
preventing or suspending the use of the Prospectus. Any reference in this
Agreement to amending or supplementing the Prospectus shall be deemed to
include the filing of materials incorporated by reference in the Prospectus
after the Closing Date (defined herein) and any reference in this Agreement to
any amendment or supplement to the Prospectus shall be deemed to include any
such materials incorporated by reference in the Prospectus after the Closing
Date (defined herein).
(b) Registration Statement, Prospectus and Indenture: Contents. 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 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 the Registration Statement and each
Prospectus will conform as of the applicable Representation Date and at all
times during each period during which, in the opinion of counsel for the
Agents, a prospectus relating to the Notes is required to be delivered under
the Act (each a "Marketing Period"), in all respects to the requirements of
the Act and the Rules and Regulations and will not as of the applicable
Representation Date and at all times during each Marketing Period contain any
untrue statement of a material fact or omit to state any material
-2-
<PAGE> 3
fact required to be stated therein or necessary to make the statements therein
not misleading, except that the Company makes no representation or warranty as
to information contained in or omitted from the Registration Statement or any
Prospectus in reliance upon and in conformity with written information
furnished to the Company by the Agents specifically for inclusion therein.
(c) Validity of the Indenture and the Notes. (i) The Indenture has been
duly authorized, executed and delivered by the Company and constitutes the
valid and legally binding obligation of the Company, enforceable in accordance
with its terms; (ii) the Notes have been validly authorized for issuance and
sale pursuant to this Agreement and, when the terms of the Notes and of their
issue and sale have been duly established in accordance with the Indenture and
this Agreement so as not to violate any applicable law or agreement or
instrument binding on the Company, and the Notes have been duly executed,
authenticated, delivered and paid therefor as provided in this Agreement and
the Indenture, the Notes will be validly issued and outstanding, and will
constitute valid and legally binding obligations of the Company entitled to
the benefits of the Indenture and enforceable in accordance with their terms
and the terms of the Indenture; and (iii) the Notes and the Indenture conform
in all material respects to the descriptions thereof contained in each
Prospectus. The validity, enforceability and legally binding nature of the
Indenture and the Notes are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(d) Investment Company Act. The Company is not required to register
under the provisions of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and no action need be taken with respect to or
under the Investment Company Act by reason of the issuance of the Notes by the
Company.
(e) Rating. The Notes have been rated by a "nationally recognized
statistical rating organization" (as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act), including one or both of
Moody's Investor Services, Inc. and Standard & Poor's Corporation.
(f) Doing Business with Cuba. The Company confirms as of the date
hereof, and each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation, that the Company is in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to
Disclosure of Doing Business with Cuba, and the Company further agrees that if
it commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the Registration Statement
becomes or has become effective with the Commission or with the Florida
Department of Banking and Finance (the "Department"), whichever date is later,
or if the information reported in the Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate located in Cuba
changes in any material way, the Company will provide the Department notice of
such business or change, as appropriate, in a form acceptable to the
Department.
SECTION 2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL
(a) Appointment. Subject to the terms and conditions stated herein, the
Company hereby appoints each of the Agents as the agent of the Company for the
purpose of soliciting or receiving offers to purchase the Notes from the
Company by others. On the basis of the representations and warranties
contained herein, but subject to the terms and conditions herein set forth,
each Agent agrees, as the agent of the Company, to use its reasonable efforts
to solicit offers to purchase the Notes upon the terms and
-3-
<PAGE> 4
conditions set forth in the Prospectus. The Company may offer the Notes for
sale from time to time otherwise than through an Agent. However, so long as
this Agreement is in effect the Company shall not solicit offers to purchase
Notes through any agent without (i) amending this Agreement to appoint such
agent as an additional Agent hereunder on the same terms and conditions as
provided herein for the Agents (the consent of the then current Agents shall
not be necessary for such purpose) and (ii) delivering 2 days prior written
notice thereof to the Agents. The Company may, however, accept offers to
purchase Notes through an agent other than an Agent, provided that (i) the
Company shall not have solicited such offers, (ii) the Company and such agent
shall have executed an agreement with respect to such purchases having the
same terms and conditions (including, without limitation, commission and
discount rates) as those which would apply to such purchases under this
Agreement if such agent were an Agent (which may be accomplished by
incorporating by reference in such agreement the terms and conditions of this
Agreement) and (iii) the Company shall provide the Agents with a copy of such
agreement promptly following the execution thereof. Each Agent may also
purchase Notes from the Company as principal for purposes of resale, as more
fully described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the right, in its
sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt of
at least one business day's prior written or telephonic (confirmed in writing
by facsimile) notice from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company until such time as
the Company has advised the Agents that such solicitation may be resumed. For
the purpose of the foregoing sentence, "business day" shall mean any day which
is not a Saturday or Sunday and which is not a day on which (i) banking
institutions are generally authorized or obligated by law to close in The City
of New York and (ii) the New York Stock Exchange is closed for trading.
Upon receipt of notice from the Company as contemplated by Section 3(b)
hereof, each Agent shall suspend its solicitation of offers to purchase Notes
until such time as the Company shall have furnished it with an amendment or
supplement to the Registration Statement or the Prospectus, as the case may
be, contemplated by Section 3(b) and shall have advised such Agent that such
solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale of any
Notes sold by the Company as a result of a solicitation made by or offer to
purchase received by an Agent, the Company agrees to pay such Agent a
commission, in the form of a discount, in accordance with the schedule set
forth in Exhibit A hereto.
(d) Solicitation of Offers. The Agents are authorized to solicit offers
to purchase the Notes only in denominations as are specified in the Prospectus
at a purchase price as shall be specified by the Company. Each Agent shall
communicate to the Company, orally or in writing, each reasonable offer to
purchase Notes received by it as an Agent. The Company shall have the sole
right to accept offers to purchase the Notes and may reject any such offer in
whole or in part. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Company, to reject any offer to
purchase the Notes received by it, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained herein.
No Note which the Company has agreed to sell pursuant to this Agreement
shall be deemed to have been purchased and paid for, or sold by the Company,
until such Note shall have been delivered to the purchaser thereof against
payment by such purchaser.
-4-
<PAGE> 5
(e) Purchases as Principal. Each sale of Notes to any Agent as
principal, for resale to one or more investors or to another broker-dealer
(acting as principal for purposes of resale), shall be made in accordance with
the terms of this Agreement and a Purchase Agreement whether oral (and
confirmed in writing by such Agent to the Company, which may be by facsimile
transmission) or in writing, which will provide for the sale of such Notes to,
and the purchase thereof by, such Agent. A Purchase Agreement may also specify
certain provisions relating to the reoffering of such Notes by such Agent. The
commitment of any Agent to purchase Notes from the Company as principal shall
be deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and
conditions herein set forth. Each Purchase Agreement shall specify the
principal amount and terms of the Notes to be purchased by an Agent, the time
and date (each such time and date being referred to herein as a "Time of
Delivery") and place of delivery of and payment for such Notes and such other
information (as applicable) as is set forth in Exhibit C hereto. The Company
agrees that if any Agent purchases Notes as principal for resale such Agent
shall receive such compensation, in the form of a discount or otherwise, as
shall be indicated in the applicable Purchase Agreement or, if no compensation
is indicated therein a commission in accordance with Exhibit A hereto. Any
Agent may utilize a selling or dealer group in connection with the resale of
such Notes. In addition, any Agent may offer the Notes it has purchased as
principal to other dealers. Any Agent may sell Notes to any dealer at a
discount and, unless otherwise specified in the applicable Pricing Supplement,
such discount allowed to any dealer will not be in excess of 66 2/3% of the
discount to be received by such Agent from the Company. Such Purchase
Agreement shall also specify any requirements for delivery of opinions of
counsel, accountant's letters and officers' certificates pursuant to Section 5
hereof.
(f) Administrative Procedures. Administrative procedures respecting the
sale of Notes (the "Procedures") are set forth in Exhibit B hereto and may be
amended in writing from time to time by the Agents and the Company. Each Agent
and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Procedures shall apply to all transactions contemplated
hereunder including sales of Notes to any Agent as principal pursuant to a
Purchase Agreement, unless otherwise set forth in such Purchase Agreement.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of Sullivan & Cromwell, 444
South Flower Street, Los Angeles, California 90071, not later that 10:00 A.M.,
Los Angeles time, on the date of this Agreement or at such later time as may
be mutually agreed upon by the Company and the Agents, which in no event shall
be later than the time at which the Agents commence solicitation of offers to
purchase Notes hereunder (the "Closing Date").
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants and agrees:
(a) Delivery of Documents. To deliver promptly to the Agents, and in
such number as they may reasonably request, each of the following documents:
(i) copies of the Registration Statement, including all exhibits, (ii) the
Basic Prospectus, (iii) each Prospectus and (iv) any documents incorporated by
reference in the Prospectus.
(b) Revisions to Prospectus - Material Changes. If, during any
Marketing Period, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading, or if it is
necessary at any time
-5-
<PAGE> 6
to amend any Prospectus to comply with the Act, to notify the Agents promptly,
in writing, to suspend solicitation of purchases of the Notes; and if the
Company shall decide to amend or supplement the Registration Statement or any
Prospectus, to promptly advise the Agents by telephone (with confirmation in
writing) and to promptly, in writing, 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; provided, however, that if during
the period referred to above any Agent shall own any Notes which it has
purchased from the Company as principal with the intention of reselling them,
the Company shall promptly prepare and timely file with the Commission any
amendment or supplement to the Registration Statement or any Prospectus that
may, in the judgment of the Company or the Agents, be required by the Act or
requested by the Commission.
(c) Commission Filings. To timely file with the Commission during any
Marketing Period, all documents (and any amendments to previously filed
documents) required to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(d) Copies of Filings with Commission. At or prior to filing with the
Commission during any Marketing Period, (i) any amendment or supplement to the
Registration Statement, (ii) any amendment or supplement to any Prospectus or
(iii) any document incorporated by reference in any of the foregoing or any
amendment of or supplement to any such incorporated document, to furnish a
copy thereof to the Agents.
(e) Notice to Agent of Certain Events. To advise the Agents immediately
(i) when any post-effective amendment to the Registration Statement relating
to or covering the Notes becomes effective; (ii) of any request or proposed
request by the Commission for an amendment or supplement to the Registration
Statement, to any Prospectus, to any document incorporated by reference in any
of the foregoing or for any additional information and the Company will afford
the Agents a reasonable opportunity to comment on any such proposed amendment
or supplement; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any part thereof
or any order directed to any Prospectus or any document incorporated therein
by reference or the initiation or threat of any stop order proceeding; (iv) of
receipt by the Company of any notification with respect to the suspension of
the qualification of the Notes for sale in any jurisdiction or the initiation
or threat of any proceeding for that purpose; (v) of notice received by the
Company (whether formal or informal) of any downgrading in the rating of the
Notes or any other debt securities or preferred stock of the Company, by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act); (vi) any public announcement by
Standard & Poor's Corporation or Moody's Investors Service, Inc. that such
organization has under surveillance or review with possible negative
implications its rating of any debt securities or preferred stock of the
Company; and (vii) of the happening of any event which makes untrue any
statement of material fact made in the Registration Statement or any
Prospectus or which requires the making of a change in the Registration
Statement or any Prospectus in order to make any material statement therein
not misleading.
(f) Stop Orders. If, during any Marketing Period, the Commission shall
issue a stop order suspending the effectiveness of the Registration Statement,
to make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
(g) Earnings Statements. As soon as practicable, but not later than 18
months after the date of each acceptance by the Company of an offer to
purchase Notes hereunder, to make generally available to its security holders
an earnings statement covering a period of at least 12 months beginning after
the later of (i) the effective date of the Registration Statement, (ii) the
effective date of the most recent post-
-6-
<PAGE> 7
effective amendment to the Registration Statement to become effective prior to
the date of such acceptance and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the date of such
acceptance which will satisfy the provisions of Section 11(a) of the Act
(including, at the option of the Company, Rule 158 of the Rules and
Regulations under the Act).
(h) Copies of Reports, Releases and Financial Statements. So long as
any of the Notes are outstanding, to furnish to the Agents, not later than the
time the Company makes the same available to others, copies of all public
reports or releases and all reports and financial statements furnished by the
Company to any securities exchange on which the Notes are listed pursuant to
requirements of or agreements with such exchange or to the Commission pursuant
to the Exchange Act or any rule or regulation of the Commission thereunder.
(i) Blue Sky Qualifications. To endeavor, in cooperation with the
Agents, to qualify the Notes for offering and sale under the securities laws
of such jurisdictions as the Agents may designate, and to maintain such
qualifications in effect for as long as may be required for the distribution
of the Notes; and to file such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been qualified as above
provided; provided that the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
such jurisdiction.
(j) Holdback. Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, the Company will not, without the
prior consent of each Agent party to such Purchase Agreement, offer or sell,
or enter into any agreement to sell, any debt securities substantially similar
to the Notes to be sold pursuant to such Purchase Agreement, other than the
Notes which are to be sold pursuant to such Purchase Agreement and commercial
paper, securities sold under agreements to repurchase and borrowings under
bank lines of credit in the ordinary course of business.
(k) Pricing Supplement. To prepare, with respect to any Notes to be
sold through or to the Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by the Agents and to
file such Pricing Supplement timely pursuant to Rule 424 under the Act with
the Commission.
SECTION 4. PAYMENT OF EXPENSES
The Company will pay: (i) the costs of the Company incident to the
authorization, issuance, sale and delivery of the Notes and any taxes payable
in that connection; (ii) the costs incident to the preparation, printing and
filing under the Act of the Registration Statement and any amendments and
exhibits thereto; (iii) the costs incident to the preparation, printing and
filing of any document and any amendments and exhibits thereto required to be
filed by the Company under the Exchange Act; (iv) the costs of distributing
the Registration Statement as originally filed, and each amendment and post-
effective amendment thereof (including exhibits), the Basic Prospectus, each
Prospectus, any supplement or amendment to any Prospectus and any documents
incorporated by reference in any of the foregoing documents; (v) the fees and
disbursements of the Trustee, any paying agent, any calculation agent, any
exchange agent and any other agents appointed by the Company, and their
respective counsel; (vi) the costs and fees in connection with the listing of
the Notes on any securities exchange; (vii) the cost and fees in connection
with any filings with the National Association of Securities Dealers, Inc.;
(viii) the reasonable fees and disbursements of counsel to the Company and
counsel to the Agents; (ix) the fees paid to rating agencies in connection
with the rating of the Notes; (x) the fees and expenses of qualifying the
Notes under the securities laws of the several jurisdictions as provided in
Section 3(i) hereof and of
-7-
<PAGE> 8
preparing and printing a Blue Sky Memorandum and a memorandum concerning the
legality of the Notes as an investment (including reasonable fees and expenses
of counsel for the Agents in connection therewith); (xi) all advertising
expenses in connection with the offering of the Notes incurred with the
consent of the Company; (xii) all other costs and expenses incurred by the
Company arising out of the transactions contemplated hereunder and incident to
the performance of the Company's obligations under this Agreement; and (xiii)
all reasonable out-of-pocket expenses of the Agents incurred in connection
with the transactions contemplated by this Agreement.
SECTION 5. CONDITIONS OF OBLIGATIONS OF AGENTS
The obligation of the Agents, as agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation of any
person who has agreed to purchase Notes to make payment for and take delivery
of Notes, and the obligation of any Agent to purchase Notes pursuant to any
Purchase Agreement, is subject to the accuracy, on each Representation Date,
of the representations and warranties of the Company contained herein, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder, and to each of the following additional terms
and conditions:
(a) Registration Statement. The Prospectus as amended or supplemented
(including the Pricing Supplement) with respect to such Notes shall have been
filed with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the Rules and Regulations
and in accordance with Section 3(k) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor any order
directed to any document incorporated by reference in any Prospectus shall
have been issued and no stop order proceeding shall have been initiated or
threatened by the Commission; any request of the Commission for inclusion of
additional information in the Registration Statement or any Prospectus or
otherwise shall have been complied with; and the Company shall not have filed
with the Commission any amendment or supplement to the Registration Statement
or any Prospectus (or any document incorporated by reference therein) without
the consent of the Agents, which shall not be unreasonably withheld.
(b) No Suspension of Sale of the Notes. No order suspending the sale of
the Notes in any jurisdiction designated by the Agents pursuant to
Section 3(i) hereof shall have been issued, and no proceeding for that purpose
shall have been initiated or threatened.
(c) No Material Omissions or Untrue Statements. The Agents shall not
have discovered and disclosed to the Company that the Registration Statement
or any Prospectus contains an untrue statement of a fact which, in the opinion
of counsel for the Agents, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(d) Legal Matters Satisfactory to Counsel. All corporate proceedings
and other legal matters incident to the authorization, form and validity of
this Agreement, the Notes, the Indenture, the form of the Registration
Statement, each Prospectus (other than financial statements and other
financial data) and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to
counsel for the Agents and the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable them
to pass upon such matters.
-8-
<PAGE> 9
(e) Opinion of Company Counsel. At the Closing Date, the Agents shall
have received the opinion, addressed to the Agents and dated the Closing Date,
of Tim S. Glassett, Assistant General Counsel of the Company (which counsel
may rely, as to matters of New York law and as to the tax matters set forth in
paragraph (ix) below, on an opinion of Gibson, Dunn & Crutcher delivered
concurrently therewith), or other counsel acceptable to you, in form and
substance reasonably satisfactory to the Agents and their counsel, to the
effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of 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 Company; the Indenture conforms in all material respects to the
description thereof contained in the Prospectus; the Indenture constitutes
the valid and legally binding obligation of the Company 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) The Notes have been duly authorized and established in
conformity with the Indenture; the Notes conform in all material respects
to the description thereof contained in the Prospectus; when the terms of a
particular Note and of its issuance and sale have been duly authorized and
established by all necessary corporate action in conformity with the
Indenture, and such Note has been duly completed, executed, authenticated
and issued in accordance with the Indenture and delivered against payment
in accordance with this Agreement, such Note will constitute a valid and
legally binding obligation of the Company 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;
(iv) Each of the Company 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;
(v) To the best of such counsel's knowledge, (A) the Company 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 Company 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;
-9-
<PAGE> 10
(vi) This Agreement and any Purchase Agreement with respect to the
Notes have been duly authorized, executed and delivered by the Company;
(vii) The execution, delivery and performance by the Company of the
Indenture, this Agreement and any Purchase Agreement with respect to the
Notes and the issuance and sale of the Notes and compliance by the Company
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 known to such counsel of
any governmental agency or body or any court having jurisdiction over the
Company 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
anti-fraud 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 Company or Home Savings on the
officer's certificate annexed to such opinion, to which the Company or Home
Savings is a party or by which the Company or Home Savings is bound or to
which any of the properties of the Company or Home Savings is subject, or
(C) the Certificate of Incorporation or Bylaws of the Company or Charter or
Bylaws of Home Savings;
(viii) 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 Company of the Notes or the
consummation by the Company of the other transactions contemplated by this
Agreement and any Purchase Agreement with respect to the Notes, except the
registration of the Notes under the Act, the qualification of the Indenture
under the Trust Indenture Act of 1939 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 Notes; and
(ix) The Registration Statement and Prospectus and any further
amendments and supplements thereto made by the Company 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 caption "Description of 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;
and the description in the Prospectus under the caption "Certain Federal
Income Tax Considerations," together with the description in the Prospectus
Supplement under the caption "Certain United States Federal Income Tax
Considerations" of statutes, rules and regulations described therein
accurately summarize the material United States federal income tax
considerations relevant to the purchase, ownership and disposition of the
Notes.
You shall have also received from such counsel a written statement, dated
the Closing Date, to the effect that, based on his participation in the
preparation thereof, no facts have come to the attention of such counsel that
would lead him to believe that, as of its effective date, the Registration
Statement or any further amendment or supplement thereto made by the Company
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
-10-
<PAGE> 11
misleading or that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company 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 Company 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 his examination and the knowledge available to him are such that he is
unable to assume, and does not assume, any responsibility for the accuracy,
completeness or fairness of such statements except for those statements under
the captions "H. F. Ahmanson & Company," "Description of Debt Securities" and
"Certain Federal Income Tax Considerations" in the Prospectus and under the
captions "Description of Notes" and "Certain United States Federal Income Tax
Considerations" in the Prospectus Supplement insofar as statutes, rules,
regulations, contracts or other documents are described therein; and such
counsel does not 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.
(f) Officers' Certificate. The Company shall have furnished to the Agents
on the Closing Date a certificate, dated the Closing Date, of the President or
any Vice President and a principal financial or accounting officer of the
Company stating that to the best of their knowledge after reasonable
investigation in their capacity as officers of the Company (i) the
representations and warranties of the Company herein are true and correct, (ii)
the Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder,
(iii) the matters set forth in subsection (a) 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 Company or its subsidiaries which materially impairs the investment quality
of the Notes.
(g) Accountant's Letter. The Company shall have furnished to the Agents
on the Closing Date a letter of KPMG Peat Marwick LLP, addressed jointly to the
Company and the Agents and dated the Closing Date, of the type described in the
American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72, in form and substance reasonably satisfactory to the Agents to
the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
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
-11-
<PAGE> 12
forma financial information, prospective financial statements and/or
condensed financial statements derived from audited financial statements of
the Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the Agents;
(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 Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus 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 Company'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
Company'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 Company and its
subsidiaries, or any decreases in consolidated stockholders' equity,
total deposits or total assets, or changes in allowance for possible
loan losses or other items specified by the Agents, or any increases
in Federal Home Loan Bank advances or any other items specified by the
Agents, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases
-12-
<PAGE> 13
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 Agents, or any increases in any items specified
by the Agents, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Agents, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(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 Agents which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II
of, or in exhibits and schedules to, the Registration Statement specified
by the Agents or in documents incorporated by reference in the Prospectus
specified by the Agents, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Company and its subsidiaries and have found them to be in agreement.
All references in this subsection 5(g) 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 Notes at the
Closing Date for such Notes.
(h) The Agents shall have received from Sullivan & Cromwell, counsel to
the Agents, such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Notes, the Indenture, the Registration Statement,
the Prospectus and other related matters as the Agents may reasonably require,
and the Company shall have furnished to such counsel such documents as they may
request for the purpose of enabling them to pass upon such matters.
(i) Additional Conditions. 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 Company or its subsidiaries which, in the
judgment of the Agents, materially impairs the investment quality of the Notes;
(ii) any downgrading in the rating of any debt securities or preferred stock of
the Company 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 Company'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
Company 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
-13-
<PAGE> 14
of the Agents makes it impracticable to proceed with the solicitation of
offers to purchase Notes or the purchase of Notes from the Company as
principal pursuant to the applicable Purchase Agreement, as the case may be.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in the form and substance satisfactory to
counsel for the Agents.
SECTION 6. ADDITIONAL COVENANTS OF THE COMPANY
The Company covenants and agrees that:
(a) Acceptance of Offer Affirms Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes shall be deemed to be an
affirmation that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore given to the Agents pursuant
hereto are true and correct at the time of such acceptance, and an undertaking
that such representations and warranties will be true and correct at the time of
delivery to the purchaser or his agent of the Notes relating to such acceptance
as though made at and as of each such time (and such representations and
warranties shall relate to the Registration Statement and the Prospectus as
amended or supplemented to each such time).
(b) Subsequent Delivery of Officers' Certificates. The Company agrees
that during each Marketing Period, each time that the Registration Statement or
any Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely for the interest rates or maturities of the Notes or
the principal amount of Notes remaining to be sold or similar changes), each
time the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of an officers' certificate under this
Section 6(b) as a condition to the purchase of Notes pursuant to such Purchase
Agreement or the Company files with the Commission any document incorporated by
reference into any Prospectus, the Company shall submit to the Agents a
certificate, (i) as of the date of such amendment, supplement, Time of Delivery
relating to such sale or filing or (ii) if such amendment, supplement or filing
was not filed during a Marketing Period, as of the first day of the next
succeeding Marketing Period, representing that the statements contained in the
certificate referred to in Section 5(f) hereof which was last furnished to the
Agents are true and correct at the time of such amendment, supplement or filing,
as the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and each
Prospectus as amended and supplemented to such time).
(c) Subsequent Delivery of Legal Opinions. The Company agrees that during
each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing Supplement
providing solely for the interest rates or maturities of the Notes or the
principal amount of Notes remaining to be sold or similar changes), each time
the Company sells Notes to an Agent as principal and the applicable Purchase
Agreement specifies the delivery of a legal opinion under this Section 6(c) as a
condition to the purchase of Notes pursuant to such Purchase Agreement or the
Company files with the Commission any document incorporated by reference into
any Prospectus, the Company shall, (i) concurrently with such amendment,
supplement, Time of Delivery relating to such sale or filing or (ii) if such
amendment, supplement or filing was not filed during a Marketing Period, on the
first day of the next succeeding Marketing Period, furnish the Agents and their
counsel with the written opinion of counsel to the Company specified in Section
5(e) hereof, addressed
-14-
<PAGE> 15
to the Agents and dated the date of delivery of such opinion, in form
reasonably satisfactory to the Agents, of the same effect as the opinion
referred to in Section 5(e) hereof, but modified, as necessary, to relate to
the Registration Statement and each Prospectus as amended or supplemented to
the time of delivery of such opinion; provided, however, that in lieu of such
opinion, such counsel may furnish the Agents with a letter to the effect that
the Agents may rely on such prior opinion to the same extent as though it was
dated the date of such letter authorizing reliance (except that statements in
such prior opinion shall be deemed to relate to the Registration Statement and
each Prospectus as amended or supplemented to the time of delivery of such
letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. The Company agrees that
during each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented to include additional financial
information, each time the Company sells Notes to an Agent as principal and the
applicable Purchase Agreement specifies the delivery of a letter under this
Section 6(d) as a condition to the purchase of Notes pursuant to such Purchase
Agreement or the Company files with the Commission any document incorporated by
reference into any Prospectus which contains additional financial information,
the Company shall cause KPMG Peat Marwick LLP (or other independent accountants
of the Company reasonably acceptable to the Agents) to furnish the Agents, (i)
concurrently with such amendment, supplement, Time of Delivery relating to such
sale or filing or (ii) if such amendment, supplement, or filing was not filed
during a Marketing Period, on the first day of the next succeeding Marketing
Period, a letter, addressed jointly to the Company and the Agents and dated the
date of delivery of such letter, in form and substance reasonably satisfactory
to the Agents, of the same effect as the letter referred to in Section 5(g)
hereof but modified to relate to the Registration Statement and each Prospectus,
as amended and supplemented to the date of such letter, with such changes as may
be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company; provided,
however, that if the Registration Statement or any Prospectus is amended or
supplemented solely to include financial information as of and for a fiscal
quarter, such accountants may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement unless there is
contained therein any other accounting, financial or statistical information
that, in the reasonable judgment of the Agents, should be covered by such
letter, in which event such letter shall also cover such other information.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification of Agents. The Company shall indemnify and hold
harmless each Agent and each person, if any, who controls any Agent within the
meaning of the Act from and against any loss, claim, damage or liability, joint
or several, and any action in respect thereof, to which such Agent or
controlling person may become subject, under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or arises out of, or
is based upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Agent and controlling person for any legal
and other expenses reasonably incurred as such expenses are incurred by such
Agent or controlling person in investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in the Form T-1 or made in the Registration Statement or the Prospectus in
reliance upon and in conformity with written information
-15-
<PAGE> 16
furnished to the Company by the Agents specifically for inclusion therein;
provided further, that as to any prospectus included in the Registration
Statement before it became effective under the Act (a "Preliminary
Prospectus") this indemnity agreement shall not inure to the benefit of any
Agent on account of any loss, claim, damage, liability or action arising from
the sale of Notes to any person by that Agent if that Agent failed to send or
give a copy of the Prospectus, as the same may be amended or supplemented, to
that person within the time required by the Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the Company
with Section 3(a). The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Agent or controlling
person.
(b) Indemnification of the Company. Each Agent shall indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement and any person who controls the Company within the
meaning of the Act from and against any loss, claim, damage or liability, joint
or several, and any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Act, the
Exchange Act or federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or
arises out of, or is based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Agent specifically for inclusion therein, and shall
reimburse the Company or any such director, officer or controlling person for
any legal and other expenses reasonably incurred as such expenses are incurred
by such indemnified party in investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action. The foregoing
indemnity agreement is in addition to any liability which any Agent may
otherwise have to the Company or any of its directors, officers or controlling
persons.
(c) Notice. Promptly after receipt by an indemnified party under this
Section of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in writing
of the claim or the commencement of action; provided, however, that the failure
to notify the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this Section. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Agents shall have the right to employ counsel to represent the Agents who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Agents against the Company under this Section if,
in the reasonable judgment of the Agents, it is advisable for the Agents to be
represented by separate counsel, and in that event the fees and expenses of such
counsel shall be paid by the Company. It is understood, however, that the
Company shall not be liable for the fees and expenses of more than one counsel
for the Agents in any claim or action, or any separate but substantially similar
or related claims or actions in the same jurisdiction arising out of the same
general factual allegations or circumstances. The indemnifying party shall not
-16-
<PAGE> 17
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this Section 7
shall for any reason be unavailable to an indemnified party under Section 7(a)
or 7(b) hereof in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and any Agents on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and any Agents on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and any Agents on the
other with respect to such offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes (before deducting
expenses) received by the Company bears to the total commissions received by the
such Agent with respect to such offering. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or any Agent, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Agents agree that it
would not be just and equitable if contributions pursuant to this Section 7(d)
were to be determined by pro rata allocation (even if the Agents were treated as
one entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
7(d) shall be deemed to include, for purposes of this Section 7(d), 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 Section 7(d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes sold
through such Agent and distributed to the public were offered to the public
exceeds the amount of any damages which such Agent has otherwise paid or become
liable to pay by reason of any 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.
-17-
<PAGE> 18
SECTION 8. STATUS OF EACH AGENT
In soliciting offers to purchase the Notes from the Company pursuant to
this Agreement (other than in respect of any Purchase Agreement), each Agent is
acting individually and not jointly and is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes from the Company has been solicited by such Agent and accepted by the
Company but such Agent shall have no liability to the Company in the event any
such purchase is not consummated for any reason. If the Company shall default in
its obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold the Agents harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii), in
particular, pay to the Agents any commission to which they would be entitled in
connection with such sale.
SECTION 9. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS TO SURVIVE DELIVERY
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Agents contained in this Agreement, or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Agent or any person controlling such Agent or by or
on behalf of the Company, and shall survive each delivery of and payment for any
of the Notes.
SECTION 10. TERMINATION
This Agreement may be terminated for any reason with respect to any party
hereto, at any time, by any party hereto upon the giving of one day's written
notice of such termination to the other parties hereto; provided, however, if
such terminating party is an Agent, such termination shall be effective only
with respect to such terminating party. If, at the time of a termination, an
offer to purchase any of the Notes has been accepted by the Company but the time
of delivery to the purchaser has not occurred, the provisions of this Agreement
shall remain in effect until such Notes are delivered. The provisions of
Sections 2(c), 3(c), 3(g), 3(h), 4, 7, 8 and 9 hereof shall survive any
termination of this Agreement.
SECTION 11. NOTICES
Except as otherwise provided herein, all notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Agents shall be directed to them as follows: Lehman Brothers Inc., 3 World
Financial Center, New York, New York 10285-1200, Attention: Medium Term Note
Department, 12th Floor, Telephone No.: (212) 526-2040, Telecopy No.: (212)
528-1718; Bear, Stearns & Co. Inc., 245 Park Avenue, New York, New York 10167,
Attention: Medium-Term Note Department, Telephone No.: (212) 272-5371, Telecopy
No.: (212) 272-6227; CS First Boston Corporation, Park Avenue Plaza, New York,
New York 10055, Attention: Short and Medium-Term Finance Department, Telephone
No.: (212) 909-3842, Telecopy No.: (212) 318-1498; Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, World Financial Center, North Tower,
10th Floor, New York, New York 10281-1310, Attention: MTN Product Management,
Telephone No.: (212) 449-7476, Telecopy No.: (212) 449-2234; notices to the
Company shall be directed to it as follows: H. F. Ahmanson & Company, 4900
Rivergrade Road, Irwindale, California 91706, Attention: Wholesale
-18-
<PAGE> 19
Funding Manager, Mail Code #2520, Building 515 C-2, Telephone No.: (818) 814-
7342, Telecopy No.: (818) 962-9679, provided, however, that the Agents 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.
SECTION 12. BINDING EFFECT; BENEFITS
This Agreement shall be binding upon each Agent, the Company, and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (a) the representations,
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any Agent within the meaning of Section 15 of the Act, and
(b) the indemnity agreement of the Agents contained in Section 7 hereof shall be
deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Company. Nothing in this Agreement is intended or shall be construed to give
any persons other than the persons referred to in this Section, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
SECTION 13. GOVERNING LAW; COUNTERPARTS
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement may be executed in counterparts
and the executed counterparts shall together constitute a single instrument.
-19-
<PAGE> 20
SECTION 14. PARAGRAPH HEADINGS
The paragraph headings used in this Distribution Agreement are for
convenience of reference only, and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
H. F. AHMANSON & COMPANY
By:
-------------------------------------------------
CONFIRMED AND ACCEPTED
as of the date first above written:
LEHMAN BROTHERS INC.
By:
-------------------------------
BEAR, STEARNS & CO. INC.
By:
-------------------------------
CS FIRST BOSTON CORPORATION
By:
-------------------------------
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
-------------------------------
-20-
<PAGE> 21
EXHIBIT A
H. F. AHMANSON & COMPANY
MEDIUM-TERM NOTES, SERIES A
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the following
percentage of the aggregate U.S. dollar equivalent of the principal amount of
Notes sold by it:
<TABLE>
<CAPTION>
TERM COMMISSION RATE
<S> <C>
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .650%
20 years to 30 years .750%
More than 30 years Determined at time of issue
</TABLE>
<PAGE> 22
EXHIBIT B
H. F. AHMANSON & COMPANY
MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
Medium-Term Notes, Series A, due nine months or more from date of
issue (the "Notes") are to be offered on a continuing basis by H. F. Ahmanson &
Company (the "Company"). Lehman Brothers Inc., Bear, Stearns & Co. Inc., CS
First Boston Corporation and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, as agents (each an "Agent" and collectively, the
"Agents", which shall include Lehman Government Securities Inc., an affiliate
of Lehman Brothers Inc.), have each agreed to use their reasonable efforts to
solicit offers to purchase the Notes. The Notes are being sold pursuant to a
Distribution Agreement between the Company and the Agents dated April 4, 1995
(as it may be supplemented or amended from time to time, the "Distribution
Agreement") to which these administrative procedures are attached as an
exhibit. The Notes will be issued under the Company's Indenture, dated as of
April 4, 1995, between the Company and Citibank, N.A., as trustee (the
"Trustee"). The Notes will rank equally with all other unsecured and
unsubordinated indebtedness of the Company and will have been registered with
the Securities and Exchange Commission (the "Commission"). Terms defined in the
Prospectus relating to the Notes (the "Prospectus," which term shall include
any Prospectus Supplement relating to the Notes and any Pricing Supplement
relating to an applicable Note) and in the Distribution Agreement shall have
the same meaning when used in this exhibit.
The Notes will be issued either (a) in certificated fully registered
form without coupons (each, a "Certificated Note") delivered to the purchaser
thereof or a person designated by such purchaser or (b) in book-entry form
(each, a "Book-Entry Note") represented by one or more fully registered global
Notes (each, a "Global Security") delivered to the Trustee, as custodian for
The Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC. Owners of beneficial interests in Book- Entry Notes will not
be entitled to physical delivery of Certificated Notes equal in principal
amount to their respective beneficial interests.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Certificated Notes will be issued in accordance with the
procedures set forth in Part II. Book-Entry Notes will be issued in accordance
with the procedures set forth in Part III.
Administrative responsibilities, document control and record-keeping
functions to be performed by the Company will be performed by its Treasury
Operations Supervisor. Administrative procedures for the offering are explained
below.
PART I: PROCEDURES OF GENERAL APPLICABILITY
PRICE TO PUBLIC
Each Note will be issued at 100% of principal amount, unless otherwise
determined by the Company.
<PAGE> 23
DATE OF ISSUANCE
Each Note will be dated and issued as of the date of its authentication
by the Trustee.
MATURITIES
Each Note will mature on a day at least nine months or more from the
date of issuance selected by the purchaser and agreed upon by the Company. Each
Floating Rate Note (as defined below) will mature on an Interest Payment Date
(as defined below).
REGISTRATION
Notes will be issued only in fully registered form as either a
Book-Entry Note or a Certificated Note.
INTEREST PAYMENTS
Each Note bearing interest at a fixed rate (a "Fixed Rate Note") will
bear interest from its issue date at the annual rate stated on the face
thereof, payable in the case of Fixed Rate Notes other than Amortizing Notes,
unless otherwise specified in an applicable Pricing Supplement, on June 15 and
December 15 of each year (each an "Interest Payment Date" with respect to such
Fixed Rate Note) and at Stated Maturity or upon redemption, if applicable.
Special provisions are set forth in the Prospectus relating to Notes
bearing interest at a rate or rates determined by reference to an interest rate
formula ("Floating Rate Notes") at a rate determined pursuant to the formula
stated on the face thereof, payable in arrears on such dates as are specified
therein (each an "Interest Payment Date" with respect to such Floating Rate
Note).
Unless otherwise specified in an applicable Pricing Supplement,
interest on Fixed Rate Notes will be calculated and paid on the basis of a
360-day year of twelve 30-day months. Unless otherwise specified in an
applicable Pricing Supplement, interest will be payable to the person in whose
name such Note is registered at the close of business on May 31 or November 30
(whether or not a Business Day) with respect to Fixed Rate Notes other than
Amortizing Notes (as hereinafter defined) or the fifteenth day (whether or not
a Business Day) next preceding an Interest Payment Date with respect to Fixed
Rate Amortizing Notes and Floating Rate Notes (the "Record Dates"); provided,
however, that interest payable at Stated Maturity will be payable to the person
to whom principal shall be payable. Payments of principal and interest on Notes
for which payments of principal and interest are made in equal installments
over the life of the security ("Amortizing Notes") will be made either
quarterly on each March 15, June 15, September 15 and December 15 or
semiannually on each June 15 and December 15 as set forth in the applicable
Pricing Supplement, and at maturity or upon earlier redemption or repayment.
Payments with respect to Amortizing Notes will be applied first to interest due
and payable thereon and then to the reduction of the unpaid principal amount
thereof. A table setting forth repayment information in respect of each
Amortizing Note will be provided to the original purchaser and will be
available, upon request, to subsequent Holders. Any payment of principal and
interest on any such Note required to be paid on an Interest Payment Date or at
Stated Maturity or upon redemption, if applicable,
B-2
<PAGE> 24
which is not a Business Day shall be postponed to the next day which is a
Business Day, except that in the case of a LIBOR Note, if such Business Day is
in the next succeeding calendar month, such Interest Payment Date shall be the
immediately preceding Business Day. The first payment of interest on any Note
originally issued between a Record Date and an Interest Payment Date will be
made on the Interest Payment Date following the next succeeding Record Date.
All interest payments (and, in the case of Amortizing Notes, principal
payments) excluding interest payments and, in the case of Amortizing Notes,
principal payments made at Stated Maturity or upon redemption, if applicable,
will be made by check mailed to the person entitled thereto as provided above,
or, at the option of the Company, by wire transfer of immediately available
funds to an account maintained by such person with a bank located in the United
States as designated by such person not less than 15 calendar days prior to the
applicable Interest Payment Date. Notwithstanding the foregoing, the holder of
$10 million or more in aggregate principal amount of Notes of like tenor and
terms with the same Interest Payment Date may request payment by wire transfer
if appropriate payment instructions have been received in writing by the Paying
Agent not less than 15 calendar days prior to the applicable Interest Payment
Date.
On the fifth Business Day immediately preceding each Interest Payment
Date, or, in the case of Floating Rate Notes when the amount is not
determinable on such date, as soon as practicable thereafter, the Trustee will
furnish the Company with the total amount of the interest payments and, in the
case of Amortizing Notes, principal payments, to be made on such Interest
Payment Date. The Trustee (or any duly selected paying agent) will provide
monthly to the Company's Treasury Operations Supervisor a list of the principal
and interest to be paid on Notes maturing in the next succeeding month. The
Company will provide to the Trustee not later than 9:00 A.M., Pacific time, on
the payment date sufficient moneys to pay in full all principal and interest
payments due on such payment date. The Trustee will assume responsibility for
withholding taxes on interest paid as required by law.
ACCEPTANCE AND REJECTION OF OFFERS
The Company shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes from the Company received by it other than those
rejected by such Agent. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Company, to reject any offers in
whole or in part.
SETTLEMENT
The receipt of immediately available funds in U.S. dollars by the
Company in payment for a Note (less the applicable commission) and the
authentication and issuance of such Note shall, with respect to such Note,
constitute "Settlement." All offers accepted by the Company will be settled
from one to five Business Days from the date of acceptance by the Company
pursuant to the timetable for Settlement set forth below unless the Company and
the purchaser agree to Settlement on a later date; provided, however, that the
Company will so notify the Trustee of any such later date on or before the
Business Day immediately prior to the Settlement date.
B-3
<PAGE> 25
PROCEDURES FOR ESTABLISHING THE TERMS OF THE NOTES
The Company and the Agents will discuss from time to time the rates to
be borne by the Notes that may be sold as a result of the solicitation of
offers by the Agents. Once any Agent has recorded any indication of interest in
Notes upon certain terms, and communicated with the Company, if the Company
accepts an offer to purchase Notes upon such terms, it will prepare a Pricing
Supplement in the form previously approved by the Agents, reflecting the terms
of such Notes and, after approval from the Presenting Agent (as defined below
under "Settlement Procedures"), will arrange to have such Pricing Supplement
(together with the Prospectus, if amended or supplemented) filed with the
Commission and will supply an appropriate number of copies of the Prospectus,
as then amended or supplemented, together with such Pricing Supplement, to the
Presenting Agent. See "Delivery of Prospectus" below. No settlements with
respect to Notes upon such terms may occur prior to such filing and the
Presenting Agent will not, prior to such filing, mail confirmations to
customers who have offered to purchase Notes upon such terms. After such
filing, sales, mailing of confirmations and settlements may occur with respect
to Notes upon such terms, subject to the provisions of "Delivery of Prospectus"
below.
If the Company decides to post rates and a decision has been reached
to change interest rates, the Company will promptly notify each Agent. Each
Agent will forthwith suspend solicitation of purchases. At that time, the
Agents will recommend and the Company will establish rates to be so "posted."
Following establishment of posted rates and prior to the filing described in
the following sentence, the Agents may only record indications of interest in
purchasing Notes at the posted rates. Once any Agent has recorded any
indication of interest in Notes at the posted rates and communicated with the
Company, if the Company accepts an offer at the posted rate, it will prepare a
Pricing Supplement reflecting such posted rates and, after approval from the
Presenting Agent, will arrange to have such Pricing Supplement (together with
the Prospectus if amended or supplemented) filed with the Commission and will
supply an appropriate number of copies of the Prospectus, as then amended or
supplemented, to the Presenting Agent. See "Delivery of Prospectus." No
settlements at the posted rates may occur prior to such filing and the
Presenting Agent will not, prior to such filing, mail confirmations to
customers who have offered to purchase Notes at the posted rates. After such
filing, sales, mailing of confirmations and settlements may resume, subject to
the provisions of "Delivery of Prospectus" below.
SUSPENSION OF SOLICITATION; AMENDMENT OR SUPPLEMENT
In the event that at the time the Agents, at the direction of the
Company, suspend solicitation of offers to purchase from the Company there
shall be any orders outstanding which have not been settled, the Company will
promptly advise the Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as theretofore amended and/or supplemented
as in effect at the time of the suspension may be delivered in connection with
the settlement of such orders. The Company will have the sole responsibility
for such decision and for any arrangements which may be made in the event that
the Company determines that such orders may not be settled or that copies of
such Prospectus may not be so delivered.
B-4
<PAGE> 26
DELIVERY OF PROSPECTUS
A copy of the Prospectus as most recently amended or supplemented on
the date of delivery thereof, together with the applicable Pricing Supplement,
must be delivered to a purchaser prior to or together with the earlier of the
delivery by the Agents of (i) the written confirmation of a sale sent to a
purchaser or his agent and (ii) any Note purchased by such purchaser. The
Company shall ensure that the Presenting Agent receives copies of the
Prospectus and each amendment or supplement thereto (including the applicable
Pricing Supplement) in such quantities and within such time limits as will
enable the Presenting Agent to deliver such confirmation or Note to a purchaser
as contemplated by these procedures and in compliance with the preceding
sentence. Copies of Pricing Supplements should be delivered by 11:00 A.M. on
the Business Day following the applicable trade date by telecopy to (i) Lehman
Brothers Inc. c/o ADP Prospectus Services, 536 Broad Hollow Road, Melville, New
York 11747, Attention: Eric Johnson, Telephone No.: (516) 254-7106, Telecopy
No.: (516) 249-7942 and by hand to Lehman Brothers Inc., 3 World Financial
Center, 9th Floor, New York, New York 10285-0900, Attention: Brunie Vazquez,
Telephone No.: (212) 526-8400; (ii) Bear Stearns Securities Corporation, One
Metrotech Center North, 7th Floor Administration, Brooklyn, New York
11201-3859, Attention: Matthew Redshaw, Telecopy No.: (212) 272-1634; (iii) CS
First Boston Corporation, 5 World Trade Center, New York, New York 10048,
Attention: Joan Bryan, Telecopy No.: (212) 803-4096, with a copy for
record-keeping purposes to Short and Medium-Term Finance, Park Avenue Plaza, 55
East 52nd Street, New York, New York 10055, Attention: Robert W. Mitchell,
Telecopy No.: (212) 318-1498; or (iv) Merrill Lynch & Co. -- Tritech Services,
4 Corporate Place, Corporate Park 287, Piscataway, New Jersey 08854, Attention:
Prospectus Operations/Nachman Kimmerling, Telephone No.: (908) 885-2769,
Telecopy No.: (908) 885-2774/2775/2776; also, for record keeping purposes, send
a copy to: Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Merrill Lynch World Headquarters, World Financial Center, North
Tower, 10th Floor, New York, New York 10281-1310, Attention: MTN Product
Management and to Citibank, N.A., 111 Wall Street, New York, New York 10043,
MTN Unit, Attention: Sharon Nixon and to Citibank, N.A., 120 Wall Street, 13th
Floor, New York, New York 10043, Attention: Corporate Administration, Reynaldo
Duma. If, since the date of acceptance of a purchaser's offer, the Prospectus
shall have been supplemented solely to reflect any sale of Notes on terms
different from those agreed to between the Company and such purchaser or a
change in posted rates not applicable to such purchaser, such purchaser shall
not receive the Prospectus as supplemented by such new supplement, but shall
receive the Prospectus as supplemented to reflect the terms of the Notes being
purchased by such purchaser and otherwise as most recently amended or
supplemented on the date of delivery of the Prospectus. The Company will make
all such deliveries with respect to all Notes sold directly by the Company.
REDEMPTION AND REPAYMENT
Unless one or more Redemption Dates are specified in the applicable
Pricing Supplement, the Notes will not be redeemable prior to their Stated
Maturity. If one or more Redemption Dates are so specified with respect to any
Note, the applicable Pricing Supplement will also specify one or more
redemption prices (expressed as a percentage of the principal amount of such
Note) ("Redemption Prices") and the redemption period or periods ("Redemption
Periods") during which such Redemption Prices shall apply. Unless otherwise
specified in the Pricing Supplement, any such Note shall be redeemable at the
option of the Company at the specified Redemption Price applicable to the
Redemption Period during which such Note is to be redeemed, together with
interest accrued to the Redemption Date. Unless otherwise specified in the
applicable Pricing Supplement, the Notes will not be subject to any sinking
fund. The
B-5
<PAGE> 27
Company may redeem any of the Notes that are redeemable and remain outstanding
either in whole or from time to time in part, upon not less than 30 nor more
than 60 days' notice. In the event of a redemption in part of any Note, a new
Note for the amount of the unredeemed portion shall be issued in the name of
the Holder upon cancellation of the redeemed Note.
The Pricing Supplement relating to each Note will indicate either that
such Note cannot be repaid prior to Stated Maturity or that such Note will be
repayable at the option of the holder on a date or dates specified prior to
Stated Maturity at a price or prices set forth in the applicable Pricing
Supplement, together with accrued interest to the date of repayment.
In order for a Note that is subject to repayment at the option of the
Holder to be repaid, the Trustee must receive at least 30 days but not more
than 60 days prior to the repayment date (a) appropriate wire instructions and
(b) the Note with the form entitled "Option to Elect Repayment" attached to the
Note duly completed. Exercise of the repayment option by the Holder of a Note
shall be irrevocable, except as otherwise described under "Interest Rate Reset"
and "Extendible Notes" in the Prospectus Supplement. The repayment option may
be exercised by the Holder of a Note for less than the entire principal amount
of the Note provided that the principal amount of the Note remaining
outstanding after repayment is an authorized denomination. No transfer or
exchange of any Note (or, in the event that any Note is to be repaid in part,
the portion of the Note to be repaid) will be permitted after exercise of a
repayment option. All questions as to the validity, eligibility (including time
of receipt) and acceptance of any Note for repayment will be determined by the
Company, whose determination will be final, binding and non-appealable.
If a Note is represented by a Global Security, the Depositary's
nominee will be the Holder of such Note and therefore will be the only entity
that can exercise a right to repayment. In order to ensure that the
Depositary's nominee will timely exercise a right to repayment with respect to
a particular Note, the beneficial owner of such Note must instruct the broker
or other direct or indirect participant through which it holds an interest in
such Note to notify the Depositary of its desire to exercise a right to
repayment. Different firms have different cut-off times for accepting
instructions from their customers and, accordingly, each beneficial owner
should consult the broker or other direct or indirect participant through which
it holds an interest in a Note in order to ascertain the cut-off time by which
such an instruction must be given in order for timely notice to be delivered to
the Depositary.
Unless otherwise specified in the applicable Pricing Supplement, if a
Note is an Original Issue Discount Note, the amount payable on such Note in the
event of redemption or repayment prior to its Stated Maturity shall be the
Amortized Face Amount of such Note, as specified in the applicable Pricing
Supplement, as of the Redemption Date or the date of repayment, as the case may
be.
AUTHENTICITY OF SIGNATURES
The Company will cause the Trustee to furnish the Agents from time to
time with the specimen signatures of each of the Trustee's officers, employees
and agents who have been authorized by the Trustee to authenticate Notes, but
the Agents will have no obligation or liability to the Company or the Trustee
in respect of the authenticity of the signature of any officer, employee or
agent of the Company or the Trustee on any Note.
B-6
<PAGE> 28
ADVERTISING COSTS
The Company will determine with the Agents the amount and nature of
advertising that may be appropriate in offering the Notes. Advertising expenses
incurred with the consent of the Company will be paid by the Company.
BUSINESS DAY
"Business Day" shall mean any Monday, Tuesday, Wednesday, Thursday or
Friday that in The City of New York is not a day on which banking institutions
are authorized or required by law, regulation or executive order to close and,
with respect to Notes as to which LIBOR is an applicable Base Rate, is also a
London Business Day. As used herein, "London Business Day" means any day on
which dealings in deposits in U.S. dollars are transacted in the London
interbank market.
PART II: PROCEDURES FOR CERTIFICATED NOTES
CURRENCY
Certificated Notes will be denominated in U.S. dollars.
IDENTIFICATION NUMBERS
The Company will arrange, on or prior to commencement of a program for
the offering of Certificated Notes, with the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service Bureau") for the reservation of a series
of CUSIP numbers, consisting of approximately 900 CUSIP numbers and relating to
Certificated Notes. The Company will obtain a written list of such series of
reserved CUSIP numbers and will deliver to the Trustee such written list of 900
CUSIP numbers of such series. The Trustee, on the advice of the Company, will
assign CUSIP numbers to Certificated Notes as described below under Settlement
Procedure "B."
REGISTRATION
Certificated Notes may be presented for registration of transfer or
exchange at the Trustee's Office at 111 Wall Street, 5th Floor, New York, New
York 10043.
DENOMINATIONS
Except as provided in the applicable Pricing Supplement, Certificated
Notes will be issued and payable in U.S. dollars in the denomination of $1,000
and any larger denomination which is an integral multiple of $1,000.
B-7
<PAGE> 29
MATURITY
Upon presentation of each Certificated Note at Maturity the Trustee
(or any duly appointed Paying Agent) will pay the principal amount thereof,
together with accrued interest due at maturity. Such payment shall be made in
immediately available funds in U.S. dollars, provided that the Certificated
Note is presented to the Trustee (or any such Paying Agent) in time for the
Trustee (or such Paying Agent) to make payments in such funds in accordance
with its normal procedures. The Company will provide the Trustee (and any such
Paying Agent) with funds available for immediate use for such purpose in
accordance with the Indenture. Certificated Notes presented at Maturity will be
cancelled by the Trustee as provided in the Indenture.
SETTLEMENT PROCEDURES
In the event of a purchase of Certificated Notes by an Agent, as
principal, appropriate Settlement details will be as set forth below unless
such details are set forth in the applicable Purchase Agreement to be entered
into between such Agent and the Company pursuant to the Distribution Agreement.
Other than as contemplated above, settlement procedures with regard to
each Certificated Note sold through each Agent shall be as follows:
A. Such Agent (the "Presenting Agent") will advise the Company by
telephone, telex or facsimile, of the following Settlement information:
1. Exact name in which the Note is to be registered
("Registered Owner").
2. Exact address of the Registered Owner and address for
payment of principal and interest, if any.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount of the Note (and, if multiple Notes
are to be issued, denominations thereof).
5. Settlement date.
6. Stated Maturity and, if the Company has the option to
extend the Stated Maturity, the Extension Periods and
the Final Maturity Date.
7. Issue Price and any OID information.
8. Trade Date/Original Issue Date.
9. If such Note is a Fixed Rate Note, whether such Note
is an Amortizing Note.
10. Interest rate (including, if appropriate, such
interest rate information applicable to any Extension
Period):
B-8
<PAGE> 30
(a) Fixed Rate Certificated Notes:
(i) interest rate
(ii) interest payment dates, if other than as specified
under "Interest Payments" above
(iii) overdue rate, if any
(b) Floating Rate Certificated Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if any
(iv) date or dates, if any, on which the spread or
spread multiplier may be reset and the basis or
formula, if any, for such resetting
(v) interest rate reset periods
(vi) interest payment dates
(vii) index maturity
(viii) maximum and minimum interest rates, if any
(ix) record dates
(x) interest determination dates
(xi) overdue rate, if any
11. The date on or after which the Certificated Notes are
redeemable at the option of the Company or are to be repaid at
the option of the Holder, and additional redemption or
repurchase provisions, if any.
12. Wire transfer information.
13. Presenting Agent's commission (to be paid in the form of a
discount from the proceeds remitted to the Company upon
Settlement).
14. That the Note will be a Certificated Note.
B. The Company will confirm the above Settlement information to the
Trustee by telephone and telex or facsimile, and the Trustee will assign a
CUSIP number to the transaction. If the Company rejects an offer, the Company
will promptly notify the Presenting Agent and the Trustee by telephone.
C. The Trustee will complete the first page of the preprinted 4-ply
Certificated Note packet, the form of which was previously approved by the
Company, the Agents and the Trustee.
D. The Trustee will deliver the Certificated Note (with the attached
white confirmation) and the yellow and blue stubs to the Presenting Agent at
one of the following addresses: (i) Lehman Government Securities Inc., 101
Hudson Street, 29th Floor, Jersey City, New Jersey 07302, Attention: Eddie
Steffens; (ii) Bear, Stearns & Co. Inc., 245 Park Avenue, New York, New York
10167, Attention: Matthew Redshaw; (iii) CS First Boston Corporation, 5 World
Trade Center, New York, New York 10048, Attention: Paul Riley; or (iv) Merrill
Lynch Money Markets Clearance, 55 Water Street, Concourse Level, N.S.C.C.
Window, New York, New York 10041, Attention: Al Mitchell, Telephone No.: (212)
B-9
<PAGE> 31
558-2405, Telecopy No.: (212) 558-2457. The Presenting Agent will acknowledge
receipt of the Certificated Note by completing the yellow stub and returning it
to the Trustee.
E. The Presenting Agent will cause to be wire transferred to a bank
account designated by the Company immediately available funds in U.S. dollars
in the amount of the principal amount of the Certificated Note, less the
applicable commission or discount, if any.
F. The Presenting Agent will deliver the Certificated Note (with the
white confirmation) to the purchaser against payment in immediately available
funds in the amount of the principal amount of the Certificated Note. The
Presenting Agent will deliver to the purchaser a copy of the most recent
Prospectus applicable to the Certificated Note with or prior to any written
offer of Certificated Notes, delivery of the Certificated Note and the
confirmation and payment by the purchaser for the Certificated Note.
G. The Presenting Agent will obtain the acknowledgment of receipt for
the Certificated Note and Prospectus by the purchaser through the purchaser's
completion of the blue stub.
H. The Trustee will mail the pink stub to the Company's Treasury
Operations Supervisor at H. F. Ahmanson & Company, Treasury Operations, Mail
Code # 2520, Building 515 C-2, 4900 Rivergrade Road, Irwindale, California
91706.
SETTLEMENT PROCEDURES TABLE
For offers to purchase Certificated Notes accepted by the Company,
Settlement procedures "A" through "H" set forth above shall be completed on or
before the respective times set forth below:
<TABLE>
<CAPTION>
SETTLEMENT PROCEDURE TIME (NEW YORK)
===============================================================================
<S> <C>
A 5 PM on the Trade Date
-------------------------------------------------------------------------------
B 12 Noon, two Business Days prior to Settlement Date
-------------------------------------------------------------------------------
C-D 12 Noon on the Settlement Date
-------------------------------------------------------------------------------
E 2:15 PM on the Settlement Date
-------------------------------------------------------------------------------
F-G 3 PM on the Settlement Date
-------------------------------------------------------------------------------
H 5 PM on the Business Day after the Settlement Date
================================================================================
</TABLE>
FAILS
In the event that a purchaser of a Certificated Note shall either fail to
accept delivery of or make payment for such Certificated Note on the date fixed
by the Company for Settlement, the Presenting Agent will immediately notify the
Trustee and the Company's Wholesale Funding Manager by telephone,
B-10
<PAGE> 32
confirmed in writing, of such failure and return the Certificated Note to the
Trustee. Upon the Trustee's receipt of the Certificated Note from the
Presenting Agent, the Company will promptly return to the Presenting Agent an
amount of immediately available funds in U.S. dollars equal to any amount
previously transferred to the Company in respect of the Certificated Note
pursuant to advances made by the Agent. Such returns will be made on the
Settlement Date, if possible, and in any event not later than 12 noon (New York
City time) on the Business Day following the Settlement Date. The Company will
reimburse the Presenting Agent on an equitable basis for its loss of the use of
the funds during the period when the funds were credited to the account of the
Company. Upon receipt of the Certificated Note in respect of which the default
occurred, the Trustee will mark the Certificated Note "cancelled," make
appropriate entries in its records and deliver the Certificated Note to the
Company with an appropriate debit advice. The Presenting Agent will not be
entitled to any commission with respect to any Certificated Note which the
purchaser does not accept or make payment for.
PART III: SPECIAL ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform or cause to be performed the custodial, document control and
administrative functions described below, in accordance with its respective
obligations under a Letter of Representations from the Company and the Trustee
to DTC and a Medium- Term Note Certificate Agreement previously entered into
between the Trustee and DTC, and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS"). Except as otherwise
set forth in this Exhibit B, Book-Entry Notes will be issued in accordance with
the administrative procedures set forth below.
ISSUANCE
On any date of settlement (as defined under "Settlement" below) for one
or more Fixed Rate Book-Entry Notes, the Company will issue a single Global
Security in fully registered form without coupons representing up to
$200,000,000 principal amount of all of such Notes that have the same original
issuance date, interest rate, redemption or repayment provisions and Stated
Maturity. Similarly, on any settlement date for one or more Floating Rate
Book-Entry Notes, the Company will issue a single Global Security representing
up to $200,000,000 principal amount of all of such Notes that have the same
interest rate formula, original issuance date, Initial Interest Rate, Interest
Payment Dates, Index Maturity, Spread, Spread Multiplier, minimum interest rate
(if any), maximum interest rate (if any), redemption or repayment provisions
and Stated Maturity. Each Global Security will be dated and issued as of the
date of its authentication by the Trustee. Each Global Security will have an
interest accrual date (the "Interest Accrual Date"), which will be (i) with
respect to an original Global Security (or any portion thereof), its original
issuance date and (ii) with respect to any Global Security (or portion thereof)
issued subsequently upon exchange of a Global Security or in lieu of a
destroyed, lost or stolen Global Security, the most recent Interest Payment
Date to which interest has been paid or duly provided for on the predecessor
Global Security or Securities (or if no such payment or provision has been
made, the original issuance date of the predecessor Global Security),
regardless of the date of authentication of such subsequently issued Global
Security. No Global Security will represent (i) both Fixed Rate and Floating
Rate Book-Entry Notes or (ii) any Certificated Note.
B-11
<PAGE> 33
IDENTIFICATION NUMBERS
The Company will arrange, on or prior to commencement of a program for
the offering of Book-Entry Notes, with the CUSIP Service Bureau for the
reservation of a series of CUSIP numbers (including tranche numbers),
consisting of approximately 900 CUSIP numbers and relating to Global Securities
representing the Book-Entry Notes. The Company will obtain a written list of
such series of reserved CUSIP numbers and will deliver to the Trustee and DTC
such written list of 900 CUSIP numbers of such series. The Trustee, on the
advice of the Company, will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B." DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that the Trustee has assigned
to Global Securities. When fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities, and if it deems necessary, the Company will
reserve additional CUSIP numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such additional CUSIP numbers the
Company shall deliver such additional CUSIP numbers to the Trustee and DTC.
REGISTRATION
Each Global Security will be registered in the name of Cede & Co., as
nominee for DTC, on the Securities Register maintained under the Indenture
governing such Global Security. The beneficial owner of a Book-Entry Note (or
one or more indirect participants in DTC designated by such owner) will
designate one or more participants in DTC with respect to such Book-Entry Note
(the "Participants") to act as agent or agents for such owner in connection
with the book-entry system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such Participants, a credit
balance with respect to such Book-Entry Note in the account of such
Participants. The ownership interest of such beneficial owner in such
Book-Entry Note will be recorded through the records of such Participants or
through the separate records of such Participants and one or more indirect
participants in DTC.
VOTING
In the event of any solicitation of consents from or voting by holders of
the Book-Entry Notes, the Company or the Trustee shall establish a record date
for such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall, to the extent possible, send notice of such
record date to DTC not less than 15 calendar days in advance of such record
date.
TRANSFERS
Transfers of a Book-Entry Note will be accomplished by book entries made
by DTC and, in turn, by Participants (and in certain cases, one or more
indirect participants in DTC ) acting on behalf of beneficial transferors and
transferees of such Book-Entry Note.
B-12
<PAGE> 34
CONSOLIDATION AND EXCHANGE
The Trustee may deliver to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A) Fixed Rate Book-Entry Notes
having the same original issuance date, interest rate, redemption and repayment
provisions and Stated Maturity and with respect to which interest has been paid
to the same date or (B) Floating Rate Book-Entry Notes having the same interest
rate formula, original issuance date, Initial Interest Rate, Interest Payment
Dates, Index Maturity, Spread or Spread Multiplier, minimum interest rate (if
any), maximum interest rate (if any), redemption and repayment provisions and
with respect to which interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written notice is delivered and at
least thirty days before the next Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number, obtained from the
Company, to be assigned to such replacement Global Security. Upon receipt of
such a notice, DTC will send to its Participants (including the Trustee) a
written reorganization notice to the effect that such exchange will occur on
such date. Prior to the specified exchange date, the Trustee will deliver to
the CUSIP Service Bureau a written notice setting forth such exchange date and
the new CUSIP number and stating that, as of such exchange date, the CUSIP
numbers of the Global Securities to be exchanged will no longer be valid. On
the specified exchange date, the Trustee will exchange such Global Securities
for a single Global Security bearing the new CUSIP number and a new Interest
Accrual Date, and the CUSIP numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the foregoing, if the Global Securities
to be exchanged exceed $200,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent each $200,000,000 of
principal amount of the exchanged Global Securities and an additional Global
Security will be authenticated and issued to represent any remaining principal
amount of such global Securities (see "Denominations" below).
NOTICE OF REDEMPTION AND REPAYMENT DATES
The Trustee will give notice to DTC prior to each redemption date or
repayment date (as specified in the Book-Entry Note), if any, at the time and
in the manner set forth in the letter of representation.
DENOMINATIONS
Book-Entry Notes will be issued in principal amounts of $1,000 or any
amount in excess thereof that is an integral multiple of $1,000. Global
Securities representing one or more Book-Entry Notes will be denominated in
principal amounts not in excess of $200,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess of $200,000,000 would, but
for the preceding sentence, be represented by a single Global Security, then
one Global Security will be issued to represent each $200,000,000 principal
amount of such Book-Entry Note or Notes and an additional Global Security will
be issued to represent any remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global Securities representing such Book-
Entry Note or Notes shall be assigned the same CUSIP number.
B-13
<PAGE> 35
INTEREST
General. Interest on each Book-Entry Note will accrue from the date of
issue of the Global Security representing such Note or from and including the
last date in respect of which interest has been paid or duly provided for. Each
payment of interest on a Book-Entry Note will include interest accrued up to,
but not including, the Interest Payment Date or the date of Maturity,
redemption or repayment; provided, however, that if the Interest Reset Dates
with respect to any such Note are daily or weekly, interest payable on any
Interest Payment Date, other than interest payable on any date on which
principal for such Note is payable, will include interest accrued from the date
of issue of the Global Security, or from and including the last Interest
Payment Date as the case may be, to and including the regular record date
immediately preceding the applicable Interest Payment Date except that at the
Stated Maturity the interest payments will include accrued interest from and
including the date of issue, or from and including the last day in respect of
which interest has been paid or duly provided for, as the case may be, to, but
excluding, the Stated Maturity. Interest payable at the Maturity or upon
earlier redemption or repayment of a Book-Entry Note will be payable to the
Person to whom the principal of such Note is payable. Standard & Poor's
Corporation will use the information received in the pending deposit message
described under Settlement Procedure "C" below in order to include the amount
of any interest payable and certain other information regarding the related
Global Security in the appropriate weekly bond report published by Standard &
Poor's Corporation.
Floating Rate Note Notices. On the first Business Day of January, April,
July and October of each year, the Trustee will deliver to the Company and DTC
a written list of Regular Record Dates and Interest Payment Dates that will
occur with respect to Floating Rate Book-Entry Notes during the six-month
period beginning on such first Business Day. Promptly after each Interest
Determination Date (as defined in Appendix A hereto) for Floating Rate Notes,
the Company will notify the Trustee, and the Trustee in turn will notify
Standard & Poor's Corporation, of the interest rates determined on such
Interest Determination Date.
PAYMENTS OF PRINCIPAL AND INTEREST
Payments of Interest Only. Promptly after each Regular Record Date, the
Trustee will deliver to the Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid on each Global Security on the
following Interest Payment Date (other than an Interest Payment Date coinciding
with Maturity or an earlier redemption or repayment date) and the total of such
amounts. DTC will confirm the amount payable on each Global Security on such
Interest Payment Date by reference to the daily bond reports published by
Standard & Poor's Corporation. The Company will pay to the Trustee, as paying
agent, the total amount of interest due on such Interest Payment Date (other
than at Maturity), and the Trustee will pay such amount to DTC at the times and
in the manner set forth below under "Manner of Payment." Promptly after each
Interest Determination Date for Floating Rate Book-Entry Notes, the Calculation
Agent will notify the Trustee, Standard & Poor's Corporation and the Company of
the interest rates determined on such Interest Determination Date.
Payments at Maturity or Upon Redemption or Repayment. On or about the
second Business Day of each month, the Trustee will deliver to the Company and
DTC a written list of principal and interest to be paid on each Global Security
maturing either at maturity or any redemption or repayment date in the
following month. The Company, the Trustee and DTC will confirm the amounts of
such principal and interest payments with respect to each such Global Security
on or about the fifth Business Day
B-14
<PAGE> 36
preceding the Maturity or redemption or repayment date of such Global Security.
The Company will pay to the Trustee, as the paying agent, the principal amount
of such Global Security, together with interest due at such Maturity or
redemption or repayment date, as the case may be. The Trustee will pay such
amount to DTC at the times and in the manner set forth below under "Manner of
Payment."
Promptly after payment to DTC of the principal and interest due at the
Maturity of such Global Security, the Trustee will cancel such Global Security
and deliver it to the Company with an appropriate debit advice. On the first
Business Day of each month, the Trustee will prepare a written statement
indicating the total principal amount of Outstanding Global Securities for
which it serves as paying agent as of the immediately preceding Business Day.
Manner of Payment. The total amount of any principal and interest due on
Global Securities on any Interest Payment Date or at Maturity or upon
redemption or repayment shall be paid by the Company to the Trustee in funds
available for use by the Trustee as of 9:30 A.M. (New York City time) or in any
event not later than 12:00 noon (New York City time) on such date. The Company
will make such payment on such Global Securities by instructing the Trustee to
withdraw funds from an account maintained by the Company at the Trustee. For
maturity, redemption or any other principal payments: prior to 10 A.M. (New
York City time) on such date or as soon as possible thereafter, the Trustee
will make such payments to DTC in same day funds in accordance with DTC's Same
Day Funds Settlement Paying Agent Operating Procedures. For interest payments:
the Trustee will make such payments to DTC in accordance with existing
arrangements between DTC and the Trustee. DTC will allocate such payments to
its Participants in accordance with its existing operating procedures. Neither
the Company, the Trustee (as Trustee or as Paying Agent nor any other Paying
Agent) shall have any direct responsibility or liability for the payment by DTC
to such Participants of the principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under applicable law
to be withheld from any interest payment on a Book- Entry Note will be
determined and withheld by the Participant, indirect participant in DTC or
other Person responsible for forwarding payments and materials directly to the
beneficial owner of such Note.
SETTLEMENT PROCEDURES
In the event of a purchase of Book-Entry Notes by an Agent, as principal,
Settlement details will be as set forth below unless such details are set forth
in the applicable Purchase Agreement to be entered into between such Agent and
the Company pursuant to the Distribution Agreement.
Other than as contemplated above, settlement procedures with regard to
each Book-Entry Note sold by the Company through an Agent, as agent, shall be
as follows:
A. The Presenting Agent will advise the Company by telephone, telex or
facsimile, of the following settlement information:
1. Principal amount of the Book-Entry Note (and, if multiple
Notes are to be issued, denominations thereof).
2. Settlement date.
B-15
<PAGE> 37
3. Stated Maturity and, if the Company has the option to extend
the Stated Maturity, the Extension Periods and the Final
Maturity Date.
4. Earliest Redemption Date, Redemption Price and other
redemption provisions, if any.
5. Issue Price and any OID information.
6. Trade date.
7. If such Book-Entry Note is a Fixed Rate Note, whether such
Note is an Amortizing Note.
8. The DTC Participant account number of such Agent.
9. Interest rate (including, if appropriate, such interest rate
information applicable to any Extension Period):
(a) Fixed Rate Notes:
(i) interest rate
(ii) interest payment dates, if other than as specified
under "Interest Payments" above
(iii) overdue rate, if any
(b) Floating Rate Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if any
(iv) date or dates, if any, on which the spread or
spread multiplier may be reset and the basis or
formula, if any, for such resetting
(v) interest rate reset periods
(vi) interest payment dates
(vii) index maturity
(viii) maximum and minimum interest rates, if any
(ix) record dates
(x) interest determination dates
(xi) overdue rate, if any
10. The date on or after which the Book-Entry Notes are redeemable
at the option of the Company or are to be repaid at the option
of the Holder, and additional redemption or repurchase
provisions, if any.
11. Wire transfer information.
12. Presenting Agent's commission (to be paid in the form of a
discount from the proceeds remitted to the Company upon
settlement).
13. That the Note will be a Book-Entry Note.
B-16
<PAGE> 38
B. On advice from the Company, the Trustee will assign a CUSIP number
to the Global Security representing such Note. The Company will advise the
Trustee by telephone (confirmed in writing at any time on the same date) or
electronic transmission of the information set forth in Settlement Procedure
"A" above, and the name of such Agent.
C. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement information to
DTC, the Presenting Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement Procedure "A."
2. Identification as a Fixed Rate Book-Entry Note or a Floating
Rate Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of days by
which such date succeeds the related "DTC Record Date" (which
term means the Regular Record Date except in the case of
floating rate notes which reset daily or weekly in which case
it means the date 5 calendar days immediately preceding the
Interest Payment Date) and amount of interest payable on such
Interest Payment Date.
4. Frequency of interest payments (monthly, semiannually,
quarterly, etc.).
5. CUSIP number of the Global Security representing such
Book-Entry Note.
6. Whether such Global Security will represent any other
Book-Entry Note (to the extent known at such time).
7. The number of Participant accounts to be maintained by DTC on
behalf of the Agents or the Trustee.
The Company will deliver to the Trustee a Global Security to represent
such Book-Entry Note, in a form that has been approved by the Company, the
Presenting Agent and the Trustee.
D. The Trustee will complete and authenticate the note certificate
evidencing the Global Security representing such Book- Entry Note.
E. DTC will credit such Book-Entry Note to the Trustee's participant
account at DTC.
F. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such Book-Entry Note
to the Trustee's participant account and credit such Note to the Presenting
Agent's participant account and (ii) debit the Presenting Agent's settlement
account and credit the Trustee's settlement account for an amount equal to the
price of such Book-Entry Note less the Presenting Agent's commission.
G. The Presenting Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Book-Entry Note
to the Presenting Agent's participant account and credit such Note to the
participant accounts of the Participants with respect to such Book-Entry Note
and (ii) to debit the settlement accounts of such Participants and credit the
settlement account of the Presenting Agent for an amount equal to the price of
such Note.
B-17
<PAGE> 39
H. Transfers of funds in accordance with SDFS deliver orders described
in Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. The Trustee will credit to an account of the Company maintained at
the Trustee funds available for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "F."
J. The Presenting Agent will deliver to the purchaser a copy of the
most recent Prospectus applicable to the Book-Entry Note with or prior to any
written offer of Book-Entry Notes and the confirmation and payment by the
purchaser of the Book-Entry Note.
The Presenting Agent will confirm the purchase of such Book-Entry Note to
the purchaser either by transmitting to the Participants with respect to such
Book-Entry Note a confirmation order or orders through DTC's institutional
delivery system or by mailing a written confirmation to such purchaser.
SETTLEMENT PROCEDURES TIMETABLE
For offers to purchase Book-Entry Notes solicited by an Agent, as agent,
and accepted by the Company for settlement, Settlement Procedures "A" through
"J" set forth above shall be completed as soon as possible but not later than
the respective times (New York City time) set forth below:
<TABLE>
<CAPTION>
SETTLEMENT PROCEDURES TIME
-------------------------------------------------------------------
<S> <C>
A-B 11:00 A.M. on the Sale date
-------------------------------------------------------------------
C 2:00 P.M. on the Sale date
-------------------------------------------------------------------
D 3:00 P.M. on date before Settlement date
-------------------------------------------------------------------
E 10:00 A.M. on Settlement date
-------------------------------------------------------------------
F-G 2:00 P.M. on Settlement date
-------------------------------------------------------------------
H 4:45 P.M. on Settlement date
-------------------------------------------------------------------
I-J 5:00 P.M. on Settlement date
===================================================================
</TABLE>
If a sale is to be settled more than one Business Day after the Sale
date, Settlement Procedures "A," "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M., 11:00 A.M. and 2:00 P.M., as the case
may be, on the first Business Day after the sale date. If the initial interest
rate for a Floating Rate Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement Procedures "B" and "C"
shall be completed as soon as such rate has been determined but not later than
11:00 A.M. and 12:00 Noon, respectively, on the second Business Day before the
settlement date. Settlement Procedure "I" is subject to extension in accordance
with any extension of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on the Settlement date.
B-18
<PAGE> 40
If settlement of a Book-Entry Note is rescheduled or canceled, the
Trustee will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 2:00 P.M. on the Business
day immediately preceding the scheduled Settlement date.
FAILURE TO SETTLE
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure "F," the Trustee may deliver
to DTC, through DTC's Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Book-Entry Note to the
Trustee's participant account. DTC will process the withdrawal message,
provided that the Trustee's participant account contains a principal amount to
be debited. If a withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the Trustee will mark such
Global Security "canceled," make appropriate entries in the Trustee's records
and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry Notes
represented by a Global Security, the Trustee will exchange such Global
Security for two Global Securities, one of which shall represent such
Book-Entry Note or Notes and shall be canceled immediately after issuance and
the other of which shall represent the other Book-Entry Notes previously
represented by the surrendered Global Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Book-Entry Note by the beneficial purchaser
thereof (or a Person, including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in turn, the Agent for such
Book-Entry Note may enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant to Settlement Procedures
"F" and "G," respectively. Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with respect to
a Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide, in accordance with
Settlement Procedure "D," for the authentication and issuance of a Global
Security representing the other Book-Entry Notes to have been represented by
such Global Security and will make appropriate entries in its records.
B-19
<PAGE> 41
EXHIBIT C
PURCHASE AGREEMENT
H. F. AHMANSON & COMPANY [DATE]
4900 Rivergrade Road
Irwindale, California 91706
Attention: Chief Financial Officer
The undersigned agrees to purchase the following principal amount of the
Notes described in the Distribution Agreement dated April 4, 1995 (as it may be
supplemented or amended from time to time, the "Distribution Agreement"):
PRINCIPAL AMOUNT: $__________
INTEREST RATE: ____%
DISCOUNT: ____% of Principal Amount
AGGREGATE PRICE TO BE PAID TO COMPANY (IN $__________
IMMEDIATELY AVAILABLE FUNDS):
SETTLEMENT DATE:
OTHER TERMS:
Terms defined in the Prospectus relating to the Notes and in the
Distribution Agreement shall have the same meaning when used herein.
Our obligation to purchase Notes hereunder is subject to the continued
accuracy of your representations and warranties contained in the Distribution
Agreement and to your performance and observance of all applicable covenants
and agreements contained therein, including, without limitation, your
obligations pursuant to Section 7 thereof. Our obligation hereunder is subject
to the further condition that we shall receive (a) the opinion required to be
delivered pursuant to Section 5(e) of the Distribution Agreement, (b) the
certificate required to be delivered pursuant to Section 5(f) of the
Distribution Agreement, (c) the letter referred to in Section 5(g) of the
Distribution Agreement in each case dated as of the above Settlement Date and
(d) [insert other conditions as appropriate].
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Settlement Date, you will not, without
our prior consent, offer or sell, or enter into any agreement to sell, any debt
securities substantially similar to the Notes to be sold hereby, other than the
Notes which are to be sold hereby and commercial paper, securities sold under
agreements to repurchase and borrowings under bank lines of credit in the
ordinary course of business.
We may terminate this Agreement, immediately upon notice to you, at any
time prior to the Settlement Date, if prior thereto there shall have occurred:
(i) any change, or any development involving a prospective change, in or
affecting particularly the business or properties of the Company or its
subsidiaries which, in our judgment, materially impairs the investment quality
of the Notes; (ii) any downgrading in the rating of any debt securities or
preferred stock of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act);
<PAGE> 42
(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 Company'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 Company 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 our judgment makes
it impracticable to proceed with the solicitation of offers to purchase Notes or
the purchase of Notes from the Company as principal pursuant to this Purchase
Agreement, as the case may be, or you are unable to provide any of the opinions,
certificates or letters referred to in the second preceding paragraph. In the
event of such termination, no party shall have any liability to the other party
hereto, except as provided in Sections 4, 7 and 13 of the Distribution
Agreement.
This Agreement shall be governed by and construed in accordance with the
laws of New York.
[INSERT NAME[S] OF AGENT[S]]
By:________________________________
[Title]
ACCEPTED: ,
H. F. AHMANSON & COMPANY
By:_________________________________
[Authorized Signatory]
C-2
<PAGE> 1
===============================================================================
H. F. AHMANSON & COMPANY
TO
CITIBANK, N.A., TRUSTEE
________________________
INDENTURE
DATED AS OF APRIL 4, 1995
________________________
SENIOR DEBT SECURITIES
===============================================================================
EXHIBIT 4.1
<PAGE> 2
H. F. AHMANSON & COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF APRIL 4, 1995
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<S> <C> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311 . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . 701, 702
(b) . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . 702
Section 313 . . . . . . . . . . . . . . . . . . . . . . 703
Section 314(a) . . . . . . . . . . . . . . . . . . . . 704, 1004
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . 601(a), 601(c)
(b) . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . 601(a)
(d)(2) . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . 514
Section 316(a)(1)(A) . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . 107
(c) . . . . . . . . . . . . . . . . . . . . 107
-------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
i
<PAGE> 3
Table Of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of April 4, 1995 . . . . . . . . . . . . . . . . i
ARTICLE ONE Definitions and Other Provisions of General Application . . . . . . . . . 1
Section 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 102. Compliance Certificates and Opinions. . . . . . . . . . . . . . . . . . . 10
Section 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . . . . . . . 11
Section 104. Acts of Holders; Record Dates. . . . . . . . . . . . . . . . . . . . . . 11
Section 105. Notices, Etc., to Trustee and Company. . . . . . . . . . . . . . . . . . 14
Section 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . . . . . . . 14
Section 107. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . 15
Section 108. Effect of Headings and Table of Contents. . . . . . . . . . . . . . . . . 15
Section 109. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE TWO Security Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 202. Form of Legend for Global Securities. . . . . . . . . . . . . . . . . . . 17
Section 203. Form of Trustee's Certificate of Authentication. . . . . . . . . . . . . 17
ARTICLE THREE The Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . . . . . . . 18
Section 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 303. Execution, Authentication, Delivery and Dating. . . . . . . . . . . . . . 22
Section 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 305. Registration, Registration of Transfer and Exchange. . . . . . . . . . . 27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities or Coupons. . . . . . . 30
Section 307. Payment of Interest; Interest Rights Preserved. . . . . . . . . . . . . . 31
Section 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 310. Computation of Interest. . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 311. Certificate by a Person Entitled to Delivery of a Bearer Security. . . . 34
ARTICLE FOUR Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . . . 35
Section 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . . . . . . . 35
Section 402. Application of Trust Money. . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE FIVE Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 502. Acceleration of Maturity; Rescission and Annulment. . . . . . . . . . . . 39
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee. . . . . 40
Section 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . 40
Section 505. Trustee May Enforce Claims Without Possession of Securities. . . . . . . 41
Section 506. Application of Money Collected. . . . . . . . . . . . . . . . . . . . . . 41
Section 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. 43
Section 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . . . . . . . 43
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . 43
Section 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . . . . . . 43
Section 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 515. Waiver of Usury, Stay or Extension Laws. . . . . . . . . . . . . . . . . 45
ARTICLE SIX The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 601. Certain Duties and Responsibilities. . . . . . . . . . . . . . . . . . . 45
Section 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . 46
Section 604. Not Responsible for Recitals or Issuance of Securities. . . . . . . . . . 48
Section 605. May Hold Securities or Coupons. . . . . . . . . . . . . . . . . . . . . . 48
Section 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 607. Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . 48
Section 608. Disqualification; Conflicting Interests. . . . . . . . . . . . . . . . . 49
Section 609. Corporate Trustee Required; Eligibility. . . . . . . . . . . . . . . . . 49
Section 610. Resignation and Removal; Appointment of Successor. . . . . . . . . . . . 50
Section 611. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . . . 51
Section 612. Merger, Conversion, Consolidation or Succession to Business. . . . . . . 53
Section 613. Preferential Collection of Claims Against Company. . . . . . . . . . . . 53
Section 614. Appointment of Authenticating Agent. . . . . . . . . . . . . . . . . . . 53
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company . . . . . . . . . . . . 56
Section 701. Company to Furnish Trustee Names and Addresses of Holders. . . . . . . . 56
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C> <C>
Section 702. Preservation of Information; Communications to Registered Holders. . . . 56
Section 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 704. Reports by Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease . . . . . . . . . . 58
Section 801. Company May Consolidate, Etc., Only on Certain Terms. . . . . . . . . . . 58
Section 802. Successor Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE NINE Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 901. Supplemental Indentures Without Consent of Holders. . . . . . . . . . . . 60
Section 902. Supplemental Indentures with Consent of Holders. . . . . . . . . . . . . 61
Section 903. Execution of Supplemental Indentures. . . . . . . . . . . . . . . . . . . 62
Section 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . 62
Section 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . . . . . . . 63
Section 906. Reference in Securities to Supplemental Indentures. . . . . . . . . . . . 63
ARTICLE TEN Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 1001. Payment of Principal Premium and Interest. . . . . . . . . . . . . . . . 63
Section 1002. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . 63
Section 1003. Money for Securities Payments to Be Held in Trust. . . . . . . . . . . . 65
Section 1004. Statement by Officers as to Default. . . . . . . . . . . . . . . . . . . 66
Section 1005. Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 1006. Maintenance of Properties. . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1007. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . . . . . . 67
Section 1008. Restrictions on Sale or Pledge of Stock of Home Savings. . . . . . . . . 67
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C> <C>
Section 1009. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE ELEVEN Redemption of Securities . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1101. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1102. Election to Redeem; Notice to Trustee. . . . . . . . . . . . . . . . . . 69
Section 1103. Selection by Trustee of Securities to Be Redeemed. . . . . . . . . . . . 69
Section 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 1105. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . . . 71
Section 1106. Securities Payable on Redemption Date. . . . . . . . . . . . . . . . . . 71
Section 1107. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE TWELVE Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1201. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1202. Satisfaction of Sinking Fund Payments with Securities. . . . . . . . . . 73
Section 1203. Redemption of Securities for Sinking Fund. . . . . . . . . . . . . . . . 73
ARTICLE THIRTEEN Defeasance and Covenant Defeasance . . . . . . . . . . . . . . . . . . . 74
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance. . . . . . . 74
Section 1302. Defeasance and Discharge. . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1303. Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1304. Conditions to Defeasance or Covenant Defeasance. . . . . . . . . . . . . 75
Section 1305. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions. . . . . . . . . . . . . . . . . . . . . . 77
Section 1306. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE FOURTEEN Meetings of Holders of Securities . . . . . . . . . . . . . . . . . . . . 78
Section 1401. Purposes for Which Meetings May Be Called. . . . . . . . . . . . . . . . 78
</TABLE>
vi
<PAGE> 8
<TABLE>
<S> <C> <C>
Section 1402. Call, Notice and Place of Meetings. . . . . . . . . . . . . . . . . . . . 79
Section 1403. Persons Entitled to Vote at Meetings. . . . . . . . . . . . . . . . . . . 79
Section 1404. Quorum; Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings. . . 80
</TABLE>
vii
<PAGE> 9
THIS INDENTURE, dated as of April 4, 1995, 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 Citibank,
N.A., 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
debt securities, unlimited as to principal amount, to bear such rates of
interest, if any, to mature at such time or times (herein called the
"Securities"), to be issued in one or more series and to have such other
provisions as shall be fixed as hereinafter 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
<PAGE> 10
otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted 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> 11
"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> 12
"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 office of the Trustee in
the City of New York at which at any particular time its corporate trust
business shall be principally administered, which office at the date of
execution of this Indenture is located at 120 Wall Street, 13th Floor, New
York, New York 10043, except that with respect to presentation of Securities
for payment or for registration of transfer or exchange, such term shall mean
the principal office or agency of the Trustee in the City of New York at which,
at any particular time, its corporate agency business shall be conducted, which
office or agency on the date of execution of this Indenture is located at 111
Wall Street, 5th Floor, New York, New York 10043.
"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 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Defeasible Series" has the meaning specified in Section 1301.
"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> 13
"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, any 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 or 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> 14
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:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
6
<PAGE> 15
(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 1302; 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 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.
7
<PAGE> 16
"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.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the Stated
Maturity or Maturities thereof, the original issue date or dates thereof, the
redemption provisions, if any, and any other terms specified as contemplated by
Section 3.01 with respect thereto, are to be determined by the Company, or one
or more of the Company's agents designated in an Officer's Certificate, upon
the issuance of such Securities.
"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 Registrar.
"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
8
<PAGE> 17
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 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.
"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 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.
9
<PAGE> 18
"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."
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;
10
<PAGE> 19
(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 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,
11
<PAGE> 20
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 Fourteen, 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 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 principal amount, serial number and 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
12
<PAGE> 21
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.
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.
13
<PAGE> 22
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 Administration, 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.
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
14
<PAGE> 23
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.
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.
15
<PAGE> 24
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 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.
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 Registered Securities, if any, and the Bearer Securities
and related coupons, if any, of each series shall be in substantially the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution, Officers' Certificate 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
16
<PAGE> 25
comply with the rules of any securities exchange, or as may, consistently
herewith, be determined by the officers executing such Securities or coupons,
as evidenced by their signatures on the Securities or coupons. If the form of
Securities of any series or coupons (including any such Global Security) is
established by action taken pursuant to a Board Resolution or an Officer's
Certificate, a copy of an appropriate record of such action shall be delivered
to the Trustee (and in the case of action taken pursuant to a Board Resolution,
certified by the Secretary or an Assistant Secretary of the Corporation) at or
prior to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons.
Unless otherwise specified in accordance with Section 301,
Bearer Securities shall have coupons attached.
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 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
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 203. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
17
<PAGE> 26
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Citibank, N.A. As Trustee
By _________________________________________
Authorized Officer
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 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,
(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;
18
<PAGE> 27
(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 that
series shall bear interest, if any, or the manner of determining the
same, the date or dates from which such interest shall accrue, or the
manner of determining the same, the Interest Payment Dates on which
any such interest shall be payable and the Regular Record Date for the
determination of Holders to whom interest shall be payable on any
Interest Payment Date, and the basis upon which interest shall be
calculated if other than that of a year of twelve 30-day months;
(6) the place or places where, subject to the provisions
of Section 1002, the principal of (and premium, if any) and interest
on Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and where
notices to Holders pursuant to Section 106 will be published;
(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;
(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
19
<PAGE> 28
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 defeasible as provided in Article Thirteen;
(15) 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;
(16) 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);
(17) 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;
20
<PAGE> 29
(18) the applicability or non-applicability of Section
1008, or any variations in Section 1008, or the applicability of any
additional restrictive covenants; and
(19) 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;
(20) 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
(21) 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.
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. With respect to
Securities of a series subject to a Periodic Offering, such Board Resolutions
or Officers' Certificate may provide general terms for Securities of such
series and provide either that the specific terms of particular Securities of
such series shall be specified in a Company Order or that such terms shall be
determined by the Company, or one or more of the Company's agents designated in
an Officers' Certificate, in accordance with the Company Order as contemplated
by the first proviso of the third paragraph of Section 303.
21
<PAGE> 30
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, with respect to Securities of a series subject to a
Periodic Offering, (a) such Company Order may be delivered by the Company to
the Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (c) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provision, if any,
and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company, or the Company's
duly authorized agent or agents designated in an Officers' Certificate, which
oral instructions shall be promptly
22
<PAGE> 31
confirmed in writing; and provided, further, 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 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 or Officers' Certificates 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 a Board Resolution or Officers'
Certificate 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 a Board Resolution or Officers'
Certificate 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.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to receive such Opinion of Counsel only
once at or prior to the time of the first authentication of Securities of such
series and the Opinion of Counsel above may state:
23
<PAGE> 32
(x) that the forms of such Securities have been, and
the terms of such Securities (when established in accordance
with such procedures as may be specified from time to time in
a Company Order, all as contemplated by and in accordance with
a Board Resolution or an Officers' Certificate pursuant to
Section 301, as the case may be) will have been duly
authorized by the Company and established in conformity with
the provisions of this Indenture; and
(y) that such Securities, together with the coupons,
if any, appertaining thereto, when (1) executed by the
Company, (2) completed, authenticated and delivered by the
Trustee in accordance with this Indenture, and (3) 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 customary exceptions.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof, and the
legality, validity, binding effect and enforceability thereof, upon the Opinion
of Counsel and other documents delivered pursuant to Section 201 and 301 and
this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until it has received
written notification that such opinion or other documents have been superseded
or revoked. In connection with the authentication and delivery of Securities
of a series subject to a Periodic Offering, the Trustee shall be entitled to
assume that the Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or orders of any governmental
agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 301 and of the
preceding four paragraphs, if all Securities of a series are subject to a
Periodic Offering, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 at or prior to the time
of authentication of each Security of such series if such Officer's Certificate
is delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
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
24
<PAGE> 33
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.
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
25
<PAGE> 34
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 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 certificates specified as contemplated by
Sections 301 and 311. Unless otherwise specified
26
<PAGE> 35
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" 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
27
<PAGE> 36
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 or exchange Securities of any series to be redeemed or exchanged
during a period beginning at the opening of business 15 days before the day of
the mailing or publishing, 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 or exchange of any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(3) to exchange any Bearer Security so selected for redemption except that such
a Bearer Security may be exchanged for a Registered Security of like tenor and
terms of that series, provided that such Bearer Security shall be
simultaneously surrendered for redemption.
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
28
<PAGE> 37
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 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
29
<PAGE> 38
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 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 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.
30
<PAGE> 39
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).
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
31
<PAGE> 40
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 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
32
<PAGE> 41
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 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.
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 Registered
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
33
<PAGE> 42
account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Section 309. Cancellation.
Unless otherwise provided with respect to a series of
Securities, 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
34
<PAGE> 43
not be unreasonably withheld, and any additional certification as 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 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, (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) have been delivered to the Trustee for
cancellation; 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,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as
35
<PAGE> 44
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.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
36
<PAGE> 45
(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 $25,000,000 or under any mortgage, indenture
or instrument 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 $25,000,000, 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
37
<PAGE> 46
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 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.
38
<PAGE> 47
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 has become due otherwise than by
such declaration of acceleration and any 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.
39
<PAGE> 48
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 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
40
<PAGE> 49
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 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: 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
41
<PAGE> 50
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 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
(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
42
<PAGE> 51
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.
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 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
43
<PAGE> 52
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 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
44
<PAGE> 53
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.
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 person would exercise or use under the circumstances in
the conduct of such person's own affairs.
45
<PAGE> 54
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts; 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,
46
<PAGE> 55
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;
(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
47
<PAGE> 56
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.
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
48
<PAGE> 57
(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.
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 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.
49
<PAGE> 58
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 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
50
<PAGE> 59
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.
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
51
<PAGE> 60
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 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.
52
<PAGE> 61
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).
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
53
<PAGE> 62
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 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.
54
<PAGE> 63
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:
55
<PAGE> 64
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Citibank, N.A. 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
(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;
provided, however, that so long as the Trustee is the Security Registrar such
list shall not be required to be furnished.
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
56
<PAGE> 65
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. Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than October 1 in each calendar
year, commencing in 1995 and shall be dated as of a date no more than two
months prior to the date the report is transmitted to Holders.
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
57
<PAGE> 66
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.
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;
58
<PAGE> 67
(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
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.
59
<PAGE> 68
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 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
60
<PAGE> 69
(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.
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
(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
61
<PAGE> 70
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 this
proviso, in accordance with the requirements of Sections 611 and
901(7).
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.
62
<PAGE> 71
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.
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; provided however that amounts
properly withheld under the Internal Revenue Code of 1986, as amended, by any
Person from a payment to any Holder of Securities, after having requested such
Holder to provide applicable information that would allow such Person to make
such payment without withholding, shall be considered as having been paid by
the Company to such Holder for purposes of 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
63
<PAGE> 72
Securities of that series may be surrendered for registration of transfer or
exchange 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 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 Citibank
House, 336 Strand, London WC2R 1HB, England, 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 maintained 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.
64
<PAGE> 73
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 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 and any coupons appertaining thereto,
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
65
<PAGE> 74
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of 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. The statement to be furnished
pursuant to this Section shall be made in compliance with Section 102.
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
66
<PAGE> 75
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 1006. Maintenance of Properties.
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.
67
<PAGE> 76
The Company shall not create, assume, incur or suffer to
exist, as security for indebtedness for borrowed money, any 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.
68
<PAGE> 77
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
redemption in accordance with the preceding sentence.
69
<PAGE> 78
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 in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed. Failure by the Company to
give such notice by mailing in the manner herein provided to the Holder of any
Securities designated for redemption as a whole or in part, or any defect in
the notice to any such Holder, shall not affect the validity of the proceedings
for the redemption of any other such Securities or portion thereof.
Any notice that is mailed in the manner herein provided shall
be conclusively presumed to have been given, whether or not the Holder receives
the notice.
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) 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,
(6) that the redemption is from a sinking fund, if such
is the case, and
70
<PAGE> 79
(7) the CUSIP numbers of the Securities to be redeemed.
Any notice of redemption published in accordance with Section
106 shall not be required to identify the serial numbers of the Registered
Security 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.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust 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.
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 with all
coupons, if any, appertaining thereto, maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
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 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.
71
<PAGE> 80
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 Registered 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.
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
72
<PAGE> 81
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 either (x) 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 or (y) previously delivered to the Trustee and
cancelled without reissuance pursuant to Section 309, 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 75 days prior to each sinking fund payment date
for any series of Securities, the Company shall deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing 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 45 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
73
<PAGE> 82
be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. 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 1302 or Section 1303 applied to the
Outstanding Securities of any series designated pursuant to Section 301 as
being defeasible pursuant to this Article Thirteen (hereinafter called a
"Defeasible Series"), upon compliance with the conditions set forth below in
this Article Thirteen.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
1301 to have this Section 1302 applied to the Outstanding Securities of any
Defeasible Series, the Company shall be deemed to have been discharged from its
obligations 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 1304 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 1304 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
Thirteen. Subject to compliance with this Article Thirteen, the Company may
exercise its option provided in Section 1301 to have this Section 1302 applied
to the Outstanding Securities of any Defeasible Series notwithstanding the
prior exercise of its option provided in Section 1301 to have Section 1303
applied to the Outstanding Securities of such series.
74
<PAGE> 83
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
1301 to have this Section 1303 applied to the Outstanding Securities of any
Defeasible Series, (1) the Company shall be released from its obligations under
Sections 1005 through 1008, inclusive, and (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, 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 1304 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)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section 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 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1302 or Section 1303 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 Thirteen 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
75
<PAGE> 84
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 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 1302, 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 1303, 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.
76
<PAGE> 85
(4) The Company shall have delivered to the Trustee an
Officer's 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).
(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
Officer's 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.
Section 1305. 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 1306, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section 1304
in respect of the Securities of any Defeasible Series shall be held in trust
and applied by the Trustee, in accordance with the 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
77
<PAGE> 86
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.
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 1304 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 Thirteen 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 1304 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.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article Thirteen 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 Thirteen 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 pursuant to Section 1305 with respect to Securities of such
series in accordance with this Article Thirteen; 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 FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1401. 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
78
<PAGE> 87
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 1402. 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 for any purpose
specified in Section 1401, 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 in
London 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 1401, 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, The
City of New York, or in London for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in subsection (a) of this
Section.
Section 1403. 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.
79
<PAGE> 88
Section 1404. 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 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 1402(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 of 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 1405. 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
80
<PAGE> 89
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or, 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
1402(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 1402 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.
81
<PAGE> 90
________________________
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:
__________________________
CITIBANK, N.A.
By:_____________________________________________
Attest:
__________________________
82
<PAGE> 91
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 April
4, 1995 (the "Indenture") between H. F. Ahmanson & Company, a Delaware
corporation, and Citibank, N.A., 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
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
83
<PAGE> 92
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.]*
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:_____________________________
__________________________________
* Delete if inappropriate
84
<PAGE> 93
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 April 4,
1995, the ("Indenture"), between H. F. Ahmanson & Company and Citibank, N.A.,
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
85
<PAGE> 94
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:_____________________________
86
<PAGE> 95
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 April 4, 1995 (the "Indenture") between H. F. Ahmanson
& Company and Citibank, N.A., 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 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:_________________________________
87
<PAGE> 1
EXHIBIT 4.2
CUSIP NO.:
REGISTERED NO.: FIXR - ______ PRINCIPAL AMOUNT: $________________
H. F. AHMANSON & COMPANY
MEDIUM-TERM NOTE, SERIES A
Due Nine Months or More from Date of Issue
(Fixed Rate)
THIS NOTE 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 OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO H. F.
AHMANSON & COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE
FOR, OR IN LIEU OF, THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE 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.
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH ON THE
REVERSE HEREOF:
<TABLE>
<S> <C> <C>
ISSUE PRICE:
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY:
INTEREST PAYMENT DATES:
OPTIONAL REDEMPTION: INITIAL REDEMPTION DATE: REDEMPTION PRICE: Initially ___% of
Principal Amount and declining by ___% of the
/ / Yes / / No Principal Amount on each anniversary of the
Initial Redemption Date until the Redemption
Price is 100% of the Principal Amount
</TABLE>
<PAGE> 2
<TABLE>
<S> <C> <C>
OPTION TO ELECT REPAYMENT: OPTIONAL REPAYMENT DATE(S): OPTIONAL REPAYMENT PRICE(S):
/ / Yes / / No
REPAYMENT PROVISIONS:
OPTIONAL INTEREST RATE
RESET:
EXTENDIBLE MATURITY NOTE: AMORTIZING NOTE DISCOUNTED SECURITY:
/ / Yes / / No
DEPOSITARY: The Depository Trust OTHER PROVISIONS:
Company
If this Security was issued with "original issue discount" for purposes of Section 1273 of the Internal Revenue Code of
1986, as amended, the following shall be completed:
ORIGINAL ISSUE DISCOUNT TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a
SECURITY: percentage of aggregate principal
amount):
/ / Yes / / No
YIELD TO MATURITY: INITIAL ACCRUAL PERIOD OID: METHOD USED TO DETERMINE YIELD FOR
INITIAL ACCRUAL PERIOD:
/ / Approximate / / Exact
</TABLE>
H. F. AHMANSON & COMPANY, a corporation duly organized and existing
under the laws of Delaware (herein called "Ahmanson", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of ______________ dollars ($____________) at Maturity, and to pay
interest thereon from and including the Original Issue Date shown above or from
and including the last date in respect of which interest has been paid, as the
case may be, to, but excluding, the next succeeding Interest Payment Date.
"Maturity" means the date on which the principal of this Note becomes due and
payable in full, whether at the Stated Maturity shown above or earlier by
declaration of acceleration, call for redemption or otherwise. Interest will
be paid on the Interest Payment Dates shown above, commencing with the first
such Interest Payment Date next succeeding the Original Issue Date shown above
(except as provided below), at the rate per annum specified above, until the
principal hereof is paid or made available for payment, and interest shall
accrue on any overdue principal and on any overdue installment of interest (to
the extent that the payment of such interest shall be legally enforceable) at
the rate per annum in effect at the time such principal or installment of
interest, as the case may be, was due and payable. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on the
regular record date for such interest, which shall be the May 31 or November 30
(whether or not a Business Day, as defined), as the case may be, next preceding
such Interest Payment Date; provided, however, that interest payable at
Maturity will be payable to the Person to whom principal shall be payable.
Payments of principal and interest on Notes for which payments of principal and
interest are made in equal installments over the life of the security
("Amortizing Notes"), will be made either quarterly on each March 15, June 15,
September 15 and December 15 or semiannually on each June 15 and December 15 as
set forth in the applicable Pricing Supplement,
-2-
<PAGE> 3
and at Maturity. Such payments will be payable to the person in whose name such
Amortizing Note is registered at the close of business on the fifteenth day
(whether or not a Business Day) next preceding the respective Interest Payment
Date. If this Note was originally issued between a regular record date and an
Interest Payment Date, the first payment of interest on this Note will be made
on the Interest Payment Date following the next succeeding regular record date
to the registered owner of this Note on such next succeeding regular record
date. Any interest not punctually paid or duly provided for shall be payable as
provided in the Indenture.
Payment of the principal of and interest on this Note 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 Note, this Note is
presented to the Trustee in time for the Trustee to make such payments in
accordance with its normal procedures.
Interest will be computed on the basis of a 360-day year of twelve
30-day months.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, Ahmanson has caused this instrument to be duly
executed under its corporate seal.
Dated:
H. F. AHMANSON & COMPANY
[Corporate Seal] By:
-------------------------
Name:
Title:
ATTEST:
By:
-----------------------------
-3-
<PAGE> 4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series described herein and
referred to in the within-mentioned Indenture.
CITIBANK, N.A.,
As Trustee
By:
--------------------------------
Authorized Officer
-4-
<PAGE> 5
[REVERSE OF NOTE]
H. F. AHMANSON & COMPANY
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
Section 1. General. This Note is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of Ahmanson (herein
called the "Securities"), of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture, dated as of April 4, 1995,
between Ahmanson and Citibank, N.A., as Trustee (the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, Ahmanson and the Holders of the Notes.
The Securities may be issued in one or more series, which different series may
be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to
different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, and may otherwise vary as in the Indenture
provided. This Note is one of a series designated as "Medium-Term Notes, Series
A" of Ahmanson, limited in aggregate principal amount to $500,000,000, or in
such lesser amount as may be reduced by the sale of Securities of another
series. References herein to "Notes" shall mean the Notes of said Series A.
Section 2. Payments. Interest on this Note will be payable
semi-annually each June 15 and December 15 or as otherwise set forth herein
(the "Interest Payment Dates") and at the Stated Maturity or upon earlier
redemption or repayment.
Interest payments on each Interest Payment Date for this Note will
include accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the case
may be, to, but excluding, such Interest Payment Date, except that at Maturity
the interest payments will include accrued interest from and including the
Original Issue Date, or from and including the last date in respect of which
interest has been paid, as the case may be, to, but excluding, the date of
Maturity.
Until this Note is paid or payment is duly provided for, Ahmanson
will, at all times, maintain a paying agent (the "Paying Agent") capable of
performing the duties described herein to be performed by the Paying Agent.
Ahmanson has initially appointed the Trustee as the Paying Agent. Ahmanson will
notify the Holders, in accordance with the Indenture, of any change in the
Paying Agent or its address.
Section 3. Redemption. If so specified in the face hereof, Ahmanson
may at its option redeem this Note in whole or from time to time in part on or
after the date designated as the Initial Redemption Date on the face hereof at
prices declining from a premium specified on the face hereof, if any, to par
together with accrued interest to the date of redemption. Ahmanson may exercise
such option by causing a notice of such redemption to be mailed to each Holder
by first class mail, postage prepaid, at least 30 but not more than 60 days
prior to the date of redemption. In the event of redemption of this Note in
part only, a new Note or Notes for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof. If less
than all of the Notes with like tenor and terms to this Note are to be
redeemed, the Notes to be redeemed shall be selected by the Trustee by such
method as the Trustee shall deem fair and appropriate.
Section 4. Repayment. If so specified on the face hereof, this Note
will be repayable prior to the Stated Maturity at the option of the Holder on
the Optional Repayment Dates shown on the face hereof at a price equal to 100%
of the principal amount hereof or, if this Note is a Discounted Security (as
specified on the face hereof), at the applicable Optional Repayment Price shown
on the face hereof, together with accrued interest, if any, to the date of
repayment.
<PAGE> 6
Section 5. Sinking Fund. This Note will not be subject to any sinking
fund.
Section 6. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount payable in the event of redemption or repayment, or declaration of
acceleration following an Event of Default, prior to the Stated Maturity hereof
in lieu of the principal amount due at the Stated Maturity hereof shall be the
Amortized Face Amount of this Note as of the redemption date, the date of
repayment or the date of declaration of acceleration, as the case may be. The
"Amortized Face Amount" of this Note shall be the amount equal to (a) the Issue
Price (as set forth on the face hereof) plus (b) that portion of the difference
between the Issue Price and the principal amount hereof that has accrued at the
Yield to Maturity (as set forth on the face hereof) (computed in accordance
with generally accepted United States bond yield computation principles) at the
date as of which the Amortized Face Amount is calculated but in no event shall
the Amortized Face Amount of this Note exceed its principal amount.
Section 7. Events of Default. In case an Event of Default, as defined
in the Indenture, with respect to the Notes shall have occurred and be
continuing, the principal amount of all the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
Section 8. Modifications and Waivers. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of Ahmanson and the rights of the
Holders of the Notes of each series to be affected under the Indenture at any
time by Ahmanson and the Trustee with the consent of the Holders of a majority
in principal amount of the Notes at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting, with certain
exceptions as therein provided, the Holders of specified percentages in
principal amount of the Notes of each series at the time Outstanding, on behalf
of the Holders of all Notes of such series, to waive compliance by Ahmanson
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 Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note 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
Notes of this series, the Holders of not less than 25% in principal amount of
the Notes 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 Notes 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 Note 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 Note or
of the Indenture shall alter or impair the right of the Holder of this Note,
which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and interest, if any, on this Note at the times, places
and rate herein prescribed.
Section 9. Authorized Denominations. Notes are issuable in registered
form without coupons in the minimum denomination of $1,000, and in any larger
amount that is an integral multiple of $1,000. Notes may be exchanged by the
Holder hereof without charge except for any tax or other governmental charge
imposed in connection therewith, for a like aggregate principal amount of Notes
of other authorized denominations in the manner and subject to the limitations
provided in the Indenture at the office or agency to be maintained by Ahmanson
for such purpose.
-2-
<PAGE> 7
Section 10. Registration of Transfer. As provided in the Indenture
and subject to certain limitations therein set forth, the transfer of this Note
is registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place
where the principal of and interest on this Note are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
or her attorney duly authorized in writing, and thereupon one or more new Notes
of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
Section 11. Owners. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as
the owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
Section 12. Defeasance. The Indenture contains provisions, which
apply to this Note, for defeasance at any time of (i) the entire indebtedness
of this Note or (ii) certain restrictive covenants and Events of Default with
respect to this Note, subject in either case to compliance by Ahmanson with
conditions set forth in the Indenture.
Section 13. Definitions. All terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them therein.
Section 14. Governing Law. This Note shall be governed and construed
in accordance with the law of the State of New York.
-3-
<PAGE> 8
OPTION TO ELECT REPAYMENT
The undersigned owner of this Note hereby irrevocably elects to have
Ahmanson repay the principal amount of this Note or portion hereof below
designated at the Optional Repayment Price indicated on the face hereof.
<TABLE>
<S> <C>
Dated:
-----------------------------
----------------------------------------------------------------
Signature
Sign exactly as name appears on the front of this Note
[SIGNATURE GUARANTEE - required only if Notes are to be
issued and delivered to anyone other than the registered holder]
Principal amount to be repaid, if Fill in for registration of Notes if to be issued otherwise than
amount to be repaid is less the to the then registered holder:
principal amount of this Note
(principal amount remaining must be Name:
an authorized denomination) -----------------------------------------------------------
Address:
--------------------------------------------------------
-----------------------------------------------
(Please print name and address including zip
$ code)
- -----------------------------------
SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
----------------------------------------------------------------
</TABLE>
-4-
<PAGE> 9
-------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ..................Custodian........................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.............................................
(state)
Additional abbreviations may also be used though not in the above list.
-----------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing______________attorney to transfer said Note on the books of Ahmanson,
with full power of substitution in the premises.
Dated:
----------------------------------
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
-5-
<PAGE> 1
EXHIBIT 4.3
CUSIP NO.:
REGISTERED NO.: FLR - _____ PRINCIPAL AMOUNT:$______________
H. F. AHMANSON & COMPANY
MEDIUM-TERM NOTE, SERIES A
Due Nine Months or More from Date of Issue
(Floating Rate)
THIS NOTE 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 OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO H. F.
AHMANSON & COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE
FOR, OR IN LIEU OF, THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE 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.
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH
ON THE REVERSE HEREOF:
<TABLE>
<S> <C> <C>
ISSUE PRICE:
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: STATED MATURITY:
INTEREST RESET PERIOD: INTEREST RESET DATES: INTEREST DETERMINATION DATES:
CALCULATION DATES: ACCRUED INTEREST FACTOR:
INTEREST PAYMENT PERIOD: INTEREST PAYMENT DATES:
</TABLE>
<PAGE> 2
<TABLE>
<S> <C> <C>
INDEX MATURITY: SPREAD (plus or minus): SPREAD MULTIPLIER:
MAXIMUM RATE: MINIMUM RATE:
CALCULATION AGENT: BASE RATE: (check one)
/ / Commercial Paper Rate
/ / Federal Funds Rate
/ / CD Rate
/ / 11th District Cost of Funds Rate
/ / LIBOR
/ / LIBOR Reuters
/ / LIBOR Telerate
/ / Prime Rate
/ / Treasury Rate
/ / CMT Rate
/ / Telerate 7055
/ / Telerate 7052
/ / Week
/ / Month
/ / CMT Maturity Index:
-------------
/ / Other
---------------------------
(see attached)
OPTIONAL REDEMPTION: INITIAL REDEMPTION DATE: REDEMPTION PRICES: Initially ___% of
/ / Yes / / No Principal Amount and declining by ___% of
the Principal Amount on each anniversary of
the Initial Redemption Date until the
Redemption Price is 100% of the Principal
Amount
OPTION TO ELECT REPAYMENT: OPTIONAL REPAYMENT DATE(S): OPTIONAL REPAYMENT PRICE(S):
/ / Yes / / No
REPAYMENT PROVISIONS:
OPTIONAL INTEREST RATE RESET:
EXTENDIBLE MATURITY NOTE: AMORTIZING NOTE: DISCOUNTED SECURITY:
/ / Yes / / No
</TABLE>
-2-
<PAGE> 3
<TABLE>
<S> <C> <C>
DEPOSITARY: The Depository Trust OTHER PROVISIONS:
Company
If this Security was issued with "original issue discount" for purposes of Section 1273 of the Internal Revenue Code of
1986, as amended, the following shall be completed:
ORIGINAL ISSUE DISCOUNT TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a percentage of
SECURITY: aggregate principal amount):
/ / Yes / / No
YIELD TO MATURITY: INITIAL ACCRUAL PERIOD OID: METHOD USED TO DETERMINE YIELD FOR
INITIAL ACCRUAL PERIOD:
/ / Appropriate / / Exact
</TABLE>
H. F. AHMANSON & COMPANY, a corporation duly authorized and existing
under the laws of Delaware (herein called "the Company", which term includes
any successor Person under the Indenture referred to on the reverse hereof),
for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of ___________________ dollars ($__________) at
Maturity, and to pay interest thereon from and including the Original Issue
Date shown above or from and including the last date in respect of which
interest has been paid, as the case may be, to, but excluding the next
succeeding Interest Payment Date; provided, however, that if this Note has a
daily or weekly Interest Reset Period, as shown above, such interest will be
paid from and including the Original Issue Date shown above or from and
including the last date in respect of which interest has been paid, as the case
may be, to and including the regular record date immediately preceding the
applicable Interest Payment Date, except that at Maturity the interest payments
will include accrued interest from and including the Original Issue Date, or
from and including the last date in respect of which interest has been paid, as
the case may be, to but excluding Maturity. "Maturity" means the date on which
the principal of this Note becomes due and payable in full, whether at the
Stated Maturity shown above or earlier by declaration of acceleration, call for
redemption, repayment or otherwise. Interest will be paid on the Interest
Payment Dates shown above, commencing with the first such Interest Payment Date
next succeeding the Original Issue Date shown above (except as provided below),
at the rate per annum determined in accordance with the provisions on the
reverse hereof, depending on the Base Rate specified above and the Spread, if
any, or Spread Multiplier, if any, until the principal hereof is paid or made
available for payment, and interest shall accrue on any overdue principal and
on any overdue installment of interest (to the extent that the payment of such
interest shall be legally enforceable) at the rate per annum in effect at the
time such principal or installment of interest, as the case may be, was due and
payable. The interest so payable and punctually paid or duly provided for on an
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the regular record rate for such interest, which
shall be the fifteenth day (whether or not a Business Day, as defined) next
preceding such Interest Payment Date; provided, however, that interest payable
at Maturity will be payable to the Person to whom principal shall be payable.
Payments of principal and interest on Notes for which payments of principal and
interest are made in equal installments over the life of the security
("Amortizing Notes"), will be made either quarterly on each March 15, June 15,
September 15 and December 15 or semiannually on each June 15 and December 15 as
set forth in the applicable Pricing Supplement, and at Maturity. If this Note
was originally issued between a regular record date and an Interest Payment
Date, the first payment of interest on this Note will be made on the Interest
Payment Date following the next succeeding regular record date to the
registered owner of this Note on such next succeeding regular record date. Any
interest not punctually paid or duly provided for shall be payable as provided
in the Indenture.
-3-
<PAGE> 4
Payment of the principal of and interest, if any, on this Note 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 Note, this Note is
presented to the Trustee in time for the Trustee to make such payments in
accordance with its normal procedures.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, Ahmanson has caused this instrument to be duly
executed under its corporate seal.
Dated: H. F. AHMANSON & COMPANY
[Corporate Seal] By:
-------------------------------
Name:
Title:
ATTEST:
By:
-------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series described herein and
referred to in the within-mentioned Indenture.
CITIBANK, N.A.,
As Trustee
By:
--------------------------------
Authorized Officer
-4-
<PAGE> 5
[REVERSE OF NOTE]
H. F. AHMANSON & COMPANY
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
Section 1. General. This Note is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of Ahmanson (herein
called the "Securities"), of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture, dated as of April 4, 1995,
between Ahmanson and Citibank, N.A., as Trustee (the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, Ahmanson and the Holders of the Notes.
The Securities may be issued in one or more series, which different series may
be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to
different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, and may otherwise vary as in the Indenture
provided. This Note is one of a series designated as "Medium-Term Notes, Series
A" of Ahmanson, limited in aggregate principal amount to $500,000,000 or in
such lesser amount as may be reduced by the sale of Securities of another
series. References herein to "Notes" shall mean the Notes of said Series A.
Section 2. Payments. (a) Interest on this Note will be payable
monthly, quarterly, semiannually or annually (the "Interest Payment Period") as
shown on the face hereof. Except as provided below or on the face hereof, the
date or dates on which interest will be payable (each an "Interest Payment
Date") will be, (i) if this Note has a daily, weekly or monthly Interest Reset
Date, the third Wednesday of each month or on the third Wednesday of March,
June, September and December of each year; (ii) if this Note has a quarterly
Interest Reset Date, the third Wednesday of March, June, September and December
of each year; (iii) if this Note has a semiannual Interest Reset Date, the
third Wednesday of each of the two months of each year specified on the face
hereof; and (iv) if this Note has an annual Interest Reset Date, the third
Wednesday of one month of each year specified on the face hereof and, in each
case, at Maturity. Unless otherwise specified on the face hereof, if any
Interest Payment Date for this Note would otherwise be a day that is not a
Business Day, such Interest Payment Date shall be postponed to the next day
that is a Business Day except that, if the Base Rate indicated on the face of
this Note is LIBOR and if such Business Day is in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding Business
Day. If the Maturity for this Note falls on a day that is not a Business Day,
payment of principal, premium, if any, and interest with respect to this Note
will be made on the next succeeding Business Day with the same force and effect
as if made on the due date, and no interest shall be payable on the date of
payment for the period from and after the due date.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semiannually or annually (an "Interest Reset Date"), as
specified on the face hereof. Unless otherwise specified on the face hereof,
the Interest Reset Date will be, if the rate of interest on this Note resets
daily, each Business Day; if the rate of interest on this Note (other than
Treasury Rate Notes) resets weekly, Wednesday of each week; in the case of the
Treasury Rate Notes that reset weekly, Tuesday of each week (except as provided
below); if the rate of interest on this Note resets monthly, the third
Wednesday of each month (with the exception of monthly reset 11th District Cost
of Funds Rate Notes, which will reset on the first calendar day of the month);
if the rate of interest on this Note resets quarterly, the third Wednesday of
March, June, September and December; if the rate of interest on this Note
resets semiannually, the third Wednesday of each of the two months of each year
specified on the face hereof; and if the rate of interest on this Note resets
annually, the third Wednesday of the month of each year specified on the face
hereof. If any Interest Reset Date for this Note would otherwise be a day that
is not a Business Day, such Interest Reset Date shall be postponed to the next
succeeding Business Day, except that if the Base Rate indicated on the face of
this Note is LIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the next preceding Business Day. If
the Base Rate indicated on the face of this Note is the Treasury
<PAGE> 6
Rate and if an auction of Treasury bills (as hereinafter defined) falls on a
day that is an Interest Reset Date for this Note, the Interest Reset Date shall
be the first Business Day immediately following such auction date.
As used herein, "Business Day," means any Monday, Tuesday, Wednesday,
Thursday or Friday, that in The City of New York is not a day on which banking
institutions are authorized or obligated by law, regulation or executive order
to close and, with respect to Notes as to which LIBOR is an applicable Base
Rate, is also a London Business Day. As used herein, "London Business Day"
means any day on which dealings in deposits in United States dollars are
transacted in the London interbank market.
(b) Interest payments on each Interest Payment Date for this Note
(except if the rate of interest on this Note resets daily or weekly) will
include accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid or duly
provided for, as the case may be, to, but excluding, such Interest Payment Date
or date of Maturity. If the rate of interest on this Note resets daily or
weekly, interest payments will include accrued interest from and including the
Original Issue Date or from and including the last date in respect of which
interest has been paid, as the case may be, to and including the regular record
date immediately preceding the applicable Interest Payment Date, except that at
the date of Maturity the interest payments will include accrued interest from
and including the Issue Date, or from and including the last day in respect of
which interest has been paid, as the case may be, to, but excluding, the date
of Maturity.
Accrued interest shall be calculated by multiplying the principal
amount of this Note by an accrued interest factor. Such accrued interest factor
will be computed by adding the interest factors calculated for each day in the
period for which accrued interest is being calculated. Unless otherwise set
forth on the face hereof, the interest factor (rounded upward, if necessary, to
the next higher one hundred-thousandth of a percent) for each such day is
computed by dividing the interest rate applicable to such day by 360, if the
Base Rate indicated on the face hereof is the Commercial Paper Rate, the
Federal Funds Rate, the CD Rate, the Prime Rate, the 11th District Cost of
Funds Rate or LIBOR or by the actual number of days in the year, if the Base
Rate indicated on the face hereof is the Treasury Rate or the CMT Rate. The
interest rate applicable to any date that is an Interest Reset Date is the
interest rate for such Interest Reset Date. The interest rate applicable to any
other day is the interest rate for the immediately preceding Interest Reset
Date (or, if none, the Initial Interest Rate, as described below).
Notwithstanding the foregoing, the interest rate hereon shall not be greater
than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate,
if any, shown on the face hereof. In addition, the interest rate hereon shall
in no event be higher than the maximum interest rate permitted by New York law
as the same may be modified by United States law of general application.
The Trustee shall be the initial Calculation Agent. At the request of
the Holder hereof, the Calculation Agent will provide the interest rate then in
effect.
All percentages resulting from any calculations under this Note will
be rounded, upward if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of one percentage point being
rounded upward) and all dollar amounts used in or resulting from such
calculation will be rounded to the nearest cent (with one-half cent being
rounded upward).
(c) The interest rate in effect with respect to this Note from the
Issue Date to the first Interest Reset Date (the "Initial Interest Rate") will
be specified on the face hereof. The interest rate for each subsequent Interest
Reset Date will be determined by the Calculation Agent as follows:
(i) Determination of Commercial Paper Rate. If the Base Rate is
the Commercial Paper Rate as indicated on the face hereof, the
"Commercial Paper Rate" means, with respect to any Commercial Paper
Interest Determination Date, the Money Market Yield (as defined below)
of the rate on such date for commercial paper having the Index
Maturity as indicated on the face hereof, as such rate shall be
published
-2-
<PAGE> 7
by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates," or any
successor publication of the Board of Governors ("H.15(519)") under
the heading "Commercial Paper." In the event that such rate is not
published by 9:00 A.M., New York City time, on the Calculation Date
(as defined below), then the Commercial Paper Rate shall be the Money
Market Yield of the rate on such Commercial Paper Interest
Determination Date for commercial paper of the specified Index
Maturity as published by the Federal Reserve Bank of New York in its
daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" ("Composite Quotations") under the heading
"Commercial Paper." If by 3:00 P.M, New York City time, on such
Calculation Date such rate is not yet published in Composite
Quotations, then the Commercial Paper Rate for such Commercial Paper
Interest Determination Date shall be the Money Market Yield of the
arithmetic mean of the offered rates as of 11:00 A.M., New York City
time, on such Commercial Paper Interest Determination Date of three
leading dealers of commercial paper in The City of New York selected
by the Calculation Agent for commercial paper having the specified
Index Maturity placed for an industrial issuer whose bond rating is
"AA," or the equivalent, from a nationally recognized securities
rating organization; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting offered rates as
mentioned in this sentence, the Commercial Paper Rate with respect to
such Commercial Paper Interest Determination Date will be the
Commercial Paper Rate in effect on such Commercial Paper Interest
Determination Date.
"Money Market Yield" shall be a yield (expressed as a
percentage rounded upward, if necessary, to the next highest one
hundred-thousandth of one percentage point) calculated in accordance
with the following formula:
Money Market Yield = D X 360 X 100
-------------
360 - (D X M)
where "D" refers to the applicable per annum rate for commercial
paper, quoted on a bank discount basis and expressed as a decimal, and
"M" refers to the actual number of days in the interest period for
which interest is being calculated.
The Commercial Paper Interest Determination Date shall be the
second Business Day prior to each Interest Reset Date. The Calculation
Date pertaining to a Commercial Paper Interest Determination Date
shall be the earlier of (A) the tenth calendar day after such
Commercial Paper Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day, or (B) the Business
Day preceding the applicable Interest Payment Date or date of
Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be
the Commercial Paper Rate applicable to such Interest Reset Date plus
or minus the Spread and/or multiplied by the Spread Multiplier, as
indicated on the face hereof; however, the interest rate in effect for
the period from the Original Issue Date to the first Interest Reset
Date will be the Initial Interest Rate and the interest rate in effect
for the 10 days immediately prior to the date of Maturity will be that
in effect on the tenth day preceding such date of Maturity. If an
Interest Reset Date would otherwise be a day that is not a Business
Day, the Interest Reset Date shall be postponed to the next day that
is a Business Day.
(ii) Determination of Federal Funds Rate. If the Base Rate is the
Federal Funds Rate as indicated on the face hereof, the "Federal Funds
Rate" means, with respect to any Federal Funds Interest Determination
Date, the rate on such date for Federal funds as published in
H.15(519) under the heading "Federal Funds (Effective)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Federal Funds Interest Determination Date, the
Federal Funds Rate will be the rate on such Federal Funds Interest
Determination Date as published in the Composite Quotations under the
heading "Federal
-3-
<PAGE> 8
Funds/Effective Rate." If such rate is not published in either
H.15(519) or the Composite Quotations by 3:00 P.M., New York City
time, on the Calculation Date pertaining to such Federal Funds
Interest Determination Date, the Federal Funds Rate for such Federal
Funds Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the rates as of
9:00 A.M., New York City time, on such Federal Funds Interest
Determination Date for the last transaction in overnight Federal funds
arranged by three leading brokers of Federal funds transactions in The
City of New York selected by the Calculation Agent; provided, however,
that if the brokers selected as aforesaid by the Calculation Agent are
not quoting as set forth above, the Federal Funds Rate with respect to
such Federal Funds Interest Determination Date will be the Federal
Funds Rate in effect on such Federal Funds Interest Determination
Date.
The Federal Funds Interest Determination Date shall be the
second Business Day prior to each Interest Reset Date. The
Calculation Date pertaining to a Federal Funds Interest Determination
Date shall be the earlier of (A) the tenth calendar day after such
Federal Funds Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day, or (B) the Business
Day preceding the applicable Interest Payment Date or date of
Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be
the Federal Funds Rate plus or minus the Spread and/or multiplied by
the Spread Multiplier as indicated on the face hereof; provided,
however, the interest rate in effect for the period from the Issue
Date to the first Interest Reset Date will be the Initial Interest
Rate and the interest rate in effect for the 10 days immediately prior
to Maturity will be that in effect on the tenth day preceding
Maturity. If an Interest Reset Date would otherwise be a day that is
not a Business Day, the Interest Reset Date shall be postponed to the
next day that is a Business Day.
(iii) Determination of CD Rate. If the Base Rate is the CD Rate as
indicated on the face hereof, the "CD Rate" means, with respect to any
CD Interest Determination Date, the rate on such date for negotiable
certificates of deposit having the Index Maturity as designated on the
face hereof as published in H.15(519) under the heading "CDs
(Secondary Market)," or, if not so published by 11:00 A.M., New York
City time, on the Calculation Date pertaining to such CD Interest
Determination Date, the CD Rate will be the rate on such CD Interest
Determination Date for negotiable certificates of deposit of the Index
Maturity designated on the face hereof as published by the Federal
Reserve Bank of New York in the Composite Quotations under the heading
"Certificates of Deposit." If such rate is not published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such
CD Interest Determination Date, the CD Rate for such CD Interest
Determination Date will be calculated by the Calculation Agent and
will be the arithmetic mean of the secondary market offered rates as
of 10:00 A.M., New York City time, on such CD Interest Determination
Date of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major
United States money center banks (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the
Index Maturity designated on the face hereof in a denomination of
$5,000,000; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set forth above,
the CD Rate with respect to such CD Interest Determination Date will
be the CD Rate in effect on such CD Interest Determination Date.
The CD Interest Determination Date shall be the second
Business Day prior to each Interest Reset Date. The Calculation Date
pertaining to a CD Interest Determination Date shall be the earlier of
(A) the tenth calendar day after such CD Interest Determination Date
or, if such day is not a Business Day, the next succeeding Business
Day, or (B) the Business Day preceding the applicable Interest Payment
Date or date of Maturity, as the case may be.
-4-
<PAGE> 9
The interest rate for each such Interest Reset Date shall be
the CD Rate plus or minus the Spread and/or multiplied by the Spread
Multiplier as indicated on the face hereof; provided, however, the
interest rate in effect for the period from the Issue Date to the
first Interest Reset Date will be the Initial Interest Rate and the
interest rate in effect for the 10 days immediately prior to Maturity
will be that in effect on the tenth day preceding Maturity. If an
Interest Reset Date would otherwise be a day that is not a Business
Day, the Interest Reset Date shall be postponed to the next day that
is a Business Day.
(iv) Determination of 11th District Cost of Funds Rate. If the
Base Rate is the 11th District Cost of Funds Rate as indicated on the
face hereof, the "11th District Cost of Funds Rate" means, with
respect to any 11th District Interest Determination Date, the rate
equal to the monthly weighted average cost of funds for the calendar
month preceding such 11th District Interest Determination Date as set
forth under the caption "11th District" on Telerate Page 7058 (as
defined below) as of 3:00 P.M., San Francisco time, on such 11th
District Interest Determination Date. If such rate does not appear on
Telerate Page 7058 on any related 11th District Interest Determination
Date, the 11th District Cost of Funds Rate for such 11th District Cost
of Funds Interest Determination Date shall be the monthly weighted
average cost of funds paid by member institutions of the Eleventh
Federal Home Loan Bank District that was most recently announced (the
"Index") by the Federal Home Loan Bank of San Francisco (the "FHLB of
San Francisco") as such cost of funds for the calendar month preceding
the date of such announcement. If the FHLB of San Francisco fails to
announce such rate for the calendar month next preceding such 11th
District Interest Determination Date, then the 11th District Cost of
Funds Rate for such 11th District Interest Determination Date will be
the 11th District Cost of Funds Rate then in effect on such 11th
District Interest Determination Date. "Telerate Page 7058" means the
display on the Dow Jones Telerate Service on such page (or such other
page as may replace such page on that service for the purpose of
displaying the Eleventh District Cost of Funds Rate) for the purpose
of displaying the monthly average cost of funds paid by member
institutions of the Eleventh Federal Home Loan Bank District.
The 11th District Interest Determination Date shall be the
last business day of the month immediately preceding each Interest
Reset Date on which the FHLB of San Francisco publishes the Index. The
Calculation Date pertaining to an 11th District Interest Determination
Date shall be the earlier of (A) the tenth calendar day after such
11th District Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day, or (B) the Business
Day preceding the applicable Interest Payment Date or date of
Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be
the 11th District Cost of Funds Rate plus or minus the Spread and/or
multiplied by the Spread Multiplier as indicated on the face hereof;
provided, however, the interest rate in effect for the period from the
Issue Date to the first Interest Reset Date will be the Initial
Interest Rate and the interest rate in effect for the 10 days
immediately prior to Maturity will be that in effect on the tenth day
preceding Maturity. If an Interest Reset Date would otherwise be a day
that is not a Business Day, the Interest Reset Date shall be postponed
to the next day that is a Business Day.
(v) Determination of LIBOR. If the Base Rate is LIBOR as
indicated on the face hereof, "LIBOR" means:
(A) With respect to any LIBOR Interest Determination Date,
either: (1) if "LIBOR Reuters" is specified on the face hereof,
the arithmetic mean of the offered rates (unless the specified
Designated LIBOR Page (as defined below) by its terms provides
only for a single rate, in which case such single rate shall be
used) for deposits in U.S. dollars having the Index Maturity
designated on the face hereof, commencing on the second London
Business Day immediately following such LIBOR Interest
Determination Date, which appear on the Designated LIBOR Page
specified on the face hereof as of
-5-
<PAGE> 10
11:00 A.M., London time, on such LIBOR Interest Determination
Date, if at least two such offered rates appear (unless, as
aforesaid, only a single rate is required) on such Designated
LIBOR Page, or (2) if "LIBOR Telerate" is specified on the face
hereof, the rate for deposits in U.S. dollars having the Index
Maturity designated on the face hereof, commencing on the second
London Business Day immediately following such LIBOR Interest
Determination Date, which appears on the Designated LIBOR Page
specified on the face hereof as of 11:00 A.M. London time on that
LIBOR Interest Determination Date. Notwithstanding the foregoing,
if fewer than two offered rates appear on the Designated LIBOR
Page with respect to LIBOR Reuters (unless the specified
Designated LIBOR Page with respect to LIBOR Reuters by its terms
provides only for a single rate, in which case such single rate
shall be used), or if no rate appears on the Designated LIBOR Page
with respect to LIBOR Telerate, whichever may be applicable, LIBOR
in respect of the related LIBOR Interest Determination Date will
be determined as if the parties had specified the rate described
in clause (B) below.
(B) With respect to any LIBOR Interest Determination Date on
which fewer than two offered rates appear on the Designated LIBOR
Page with respect to LIBOR Reuters (unless the Designated LIBOR
Page by its terms provides only for a single rate, in which case
such single rate shall be used), or if no rate appears on the
Designated LIBOR Page with respect to LIBOR Telerate, as the case
may be, the Calculation Agent will request the principal London
office of each of four major United States based banks in the
London interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered rate quotation for
deposits in U.S. dollars for the period of the Index Maturity
designated on the face hereof, commencing on the second London
Business Day immediately following such LIBOR Interest
Determination Date, to prime banks in the London interbank market
as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is
representative for a single transaction in U.S. dollars in such
market at such time. If at least two such quotations are provided,
LIBOR determined on such LIBOR Interest Determination Date will be
the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR determined on such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted
as of 11:00 A.M. in The City of New York on such LIBOR Interest
Determination Date by three major banks in The City of New York
selected by the Calculation Agent for loans in U.S. dollars to
leading European banks, having the Index Maturity designated on
the face hereof, commencing on the second London Business Day
immediately following such LIBOR Determination Date and in a
principal amount that is representative for a single transaction
in U.S. dollars in such market at such time; provided, however,
that if the banks so selected by the Calculation Agent are not
quoting as mentioned in this sentence, LIBOR determined on such
LIBOR Interest Determination Date will be LIBOR in effect on such
LIBOR Interest Determination Date.
"Designated LIBOR Page" means either (1) the display on
the Reuters Monitor Money Rates Service for the purpose of
displaying the London interbank rates of major banks for U.S.
dollars (if "LIBOR Reuters" is designated on the face hereof), or
(2) the display on the Dow Jones Telerate Service for the purpose
of displaying the London interbank rates of major banks for U.S.
dollars (if "LIBOR Telerate" is designated on the face hereof). If
neither LIBOR Reuters nor LIBOR Telerate is specified in the Note
and applicable Pricing Supplement, LIBOR will be determined as if
LIBOR Telerate Page 3750 had been chosen.
The LIBOR Interest Determination Date shall be the second
London Business Day immediately preceding each Interest Reset Date.
The Calculation Date pertaining to a LIBOR Interest Determination Date
shall be the earlier of (A) the tenth calendar day after the LIBOR
Interest Determination Date or, if such day is not a Business Day, the
next succeeding Business Day, or (B) the Business Day preceding the
applicable Interest Payment Date or date of Maturity, as the case may
be.
-6-
<PAGE> 11
The interest rate for each such Interest Reset Date shall be
LIBOR plus or minus the Spread and/or multiplied by the Spread
Multiplier as indicated on the face hereof; provided, however, the
interest rate in effect for the period from the Issue Date to the
first Interest Reset Date will be the Initial Interest Rate and the
interest rate in effect for the 10 days immediately prior to Maturity
will be that in effect on the tenth day preceding Maturity. If an
Interest Reset Date would otherwise be a day that is not a Business
Day, the Interest Reset Date shall be postponed to the next day that
is a Business Day, except that if such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day.
(vi) Determination of Prime Rate. If the Base Rate is the Prime
Rate as indicated on the face hereof, the "Prime Rate" means, with
respect to any Prime Interest Determination Date, the rate set forth
in H.15(519) for such date opposite the caption "Bank Prime Loan." If
such rate is not yet published by 9:00 A.M., New York City time, on
the Calculation Date pertaining to such Prime Interest Determination
Date, the Prime Rate will be calculated by the Calculation Agent and
will be the arithmetic mean of the rates of interest publicly
announced by each bank named on the Reuters Screen NYMF Page (as
defined below) as such bank's prime rate or base lending rate as in
effect for such Prime Interest Determination Date, or, if fewer than
four such rates but more than one such rate appear on the Reuters
Screen NYMF Page for such Prime Interest Determination Date, the rate
shall be the arithmetic mean of the prime rates quoted on the basis of
the actual number of days in the year divided by 360 as of the close
of business on such Prime Interest Determination Date by at least two
of the three major money center banks in The City of New York selected
by the Calculation Agent from which quotations are requested. If fewer
than two quotations are provided, the Prime Rate for such Prime
Interest Determination Date shall be calculated by the Calculation
Agent and shall be the arithmetic mean of the prime rates quoted in
The City of New York on such date by the appropriate number of
substitute banks or trust companies organized and doing business under
the laws of the United States, or any state thereof, in each case
having total equity capital of at least U.S. $500 million and being
subject to supervision or examination by a federal or state authority,
selected by the Calculation Agent to quote such rate or rates;
provided, however, that if the Prime Rate is not published in
H.15(519) and the banks or trust companies selected as aforesaid are
not quoting as mentioned in this sentence, the "Prime Rate" with
respect to such Prime Interest Determination Date will be the interest
rate otherwise in effect on such Prime Interest Determination Date.
"Reuters Screen NYMF Page" means the display designated as page "NYMF"
on the Reuters Monitor Money Rates Service (or such other page as may
replace the page NYMF on that service for the purpose of displaying
prime rates or base lending rates of major United States banks).
The Prime Interest Determination Date shall be the second
Business Day prior to each Interest Reset Date. The Calculation Date
pertaining to a Prime Interest Determination Date shall be the earlier
of (A) the tenth calendar day after such Prime Interest Determination
Date or, if such day is not a Business Day, the next succeeding
Business Day, or (B) the Business Day preceding the applicable
Interest Payment Date or date of Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be
the Prime Rate plus or minus the Spread and/or multiplied by the
Spread Multiplier as indicated on the face hereof; provided, however,
the interest rate in effect for the period from the Issue Date to the
first Interest Reset Date will be the Initial Interest Rate and the
interest rate in effect for the 10 days immediately prior to Maturity
will be that in effect on the tenth day preceding Maturity. If an
Interest Reset Date would otherwise be a day that is not a Business
Day, the Interest Reset Date shall be postponed to the next day that
is a Business Day.
(vii) Determination of Treasury Rate. If the Base Rate is the
Treasury Rate as indicated on the face hereof, the "Treasury Rate"
with respect to any Treasury Interest Determination Date shall be the
rate applicable to the most recent auction of direct obligations of
the United States ("Treasury bills") having
-7-
<PAGE> 12
the Index Maturity designated on the face hereof as published in
H.15(519) under the heading "U.S. Government Securities/ Treasury
Bills/Auction Average (Investment)" or, if not so published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such
Treasury Interest Determination Date, the auction average rate
(expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury bills having the
specified Index Maturity are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if
no such auction is held in a particular week, then the Treasury Rate
shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of approximately
3:30 P.M., New York City time, on such Treasury Interest Determination
Date, of three leading primary United States government securities
dealers selected by the Calculation Agent for the issue of Treasury
bills with a remaining maturity closest to the applicable Index
Maturity; provided, however, that if the dealers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate for such Treasury Interest Determination
Date will be the Treasury Rate in effect on such date.
The Treasury Interest Determination Date shall be the day of
the week in which each Interest Reset Date falls on which Treasury
bills would usually be auctioned. Treasury bills are usually sold at
auction on Monday of each week, unless that day is a legal holiday, in
which case the auction is usually held on the following Tuesday,
except that such auction may be held on the preceding Friday. If, as a
result of a legal holiday, an auction is so held on the preceding
Friday, such Friday will be the Treasury Interest Determination Date
pertaining to the Reset Period commencing in the next succeeding week.
If an auction date shall fall on any Interest Reset Date for a
Treasury Rate Note, then such Interest Reset Date shall instead be the
first Business Day immediately following such auction date. The
Calculation Date pertaining to a Treasury Interest Determination Date
will be the earlier of (A) the tenth calendar day after such Treasury
Interest Determination Date or, if such day is not a Business Day, the
next succeeding Business Day, or (B) the Business Day preceding the
applicable Interest Payment Date or date of Maturity, as the case may
be.
The interest rate for each such Interest Reset Date shall be
the Treasury Rate plus or minus the Spread and/or multiplied by the
spread Multiplier as indicated on the face hereof; provided, however,
the interest rate in effect for the period from the Issue Date to the
first Interest Reset Date will be the Initial Interest Rate and the
interest rate in effect for the 10 days immediately prior to Maturity
will be that in effect on the tenth day preceding Maturity. If an
Interest Reset Date would otherwise be a day that is not a Business
Day, the Interest Reset Date shall be postponed to the next day that
is a Business Day.
(viii) Determination of CMT Rate. If the Base Rate is the CMT Rate
as indicated on the face hereof, the "CMT Rate" means, with respect to
any CMT Interest Determination Date, the rate displayed on the
Designated CMT Telerate Page (as defined below) under the caption
"...Treasury Constant Maturities ... Federal Reserve Board Release
H.15 ... Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Interest
Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the week, or the month, as applicable, ended immediately
preceding the week in which the applicable CMT Interest Determination
Date occurs. If such rate is no longer displayed on the relevant page,
or if not displayed by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such CMT Interest Determination Date,
then the CMT Rate for such CMT Interest Determination Date will be
such treasury constant maturity rate for the Designated CMT Maturity
Index as published in the relevant H.15(519). If such rate is no
longer published, or if not published by 3:00 P.M., New York City
time, on the Calculation Date pertaining to such CMT Interest
Determination Date, then the CMT Rate for such CMT Interest
-8-
<PAGE> 13
Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index (or other United States Treasury
rate for the Designated CMT Maturity Index) for the CMT Interest
Determination Date with respect to such Interest Reset Date as may
then be published by either the Board of Governors of the Federal
Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M.,
New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the CMT Rate for the CMT Interest
Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity, based on the arithmetic mean of the
secondary market closing offer side prices as of approximately 3:30
P.M., New York City time, on the CMT Interest Determination Date
reported, according to their written records, by three leading primary
United States government securities dealers (each, a "Reference
Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less than such
Designated CMT Maturity Index minus one year. If the Calculation Agent
cannot obtain three such Treasury Note quotations, the CMT Rate for
such CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the
arithmetic mean of the secondary market closing offer side prices as
of approximately 3:30 P.M., New York City time, on the CMT Interest
Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original
maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest
to the Designated CMT Maturity Index and in an amount of at least
$100,000,000. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither
the highest nor the lowest of such quotes will be eliminated; provided
however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the CMT Rate will
be the CMT Rate in effect on such CMT Interest Determination Date. If
two Treasury Notes with an original maturity as described in the
second preceding sentence have remaining terms to maturity equally
close to the Designated CMT Maturity Index, the quotes for the
Treasury Note with the shorter remaining term to maturity will be
used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service on the page specified in the applicable Pricing
Supplement (or any other page as may replace such page on that service
for the purpose of displaying Treasury Constant Maturities as
published in H.15(519)), for the purpose of displaying Treasury
Constant Maturities as published in H.15(519). If no such page is
specified in the applicable Pricing Supplement, the Designated CMT
Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the Treasury Notes (either two, three, five, ten or thirty
years) specified in the applicable Pricing Supplement with respect to
which the CMT Rate will be calculated. If no such maturity is
specified in the applicable Pricing Supplement, the Designated CMT
Maturity Index shall be two years.
The CMT Interest Determination Date shall be the second
Business Day prior to each Interest Reset Date. The Calculation Date
pertaining to a CMT Interest Determination Date shall be the earlier
of (A) the tenth calendar day after such CMT Interest Determination
Date or, if such day is not a Business Day, the next succeeding
Business Day, or (B) the Business Day preceding the applicable
Interest Payment Date or date of Maturity, as the case may be.
-9-
<PAGE> 14
The interest rate for each such Interest Reset Date shall be
the CMT Rate plus or minus the Spread and/or multiplied by the Spread
Multiplier as indicated on the face hereof; provided, however, the
interest rate in effect for the period from the Issue Date to the
first Interest Reset Date will be the Initial Interest Rate and the
interest rate in effect for the 10 days immediately prior to Maturity
will be that in effect on the tenth day preceding Maturity. If an
Interest Reset Date would otherwise be a day that is not a Business
Day, the Interest Reset Date shall be postponed to the next day that
is a Business Day.
(d) Until this Note is paid or payment of this Note is duly provided
for, Ahmanson will, at all times, maintain a paying agent (the "Paying Agent")
capable of performing the duties described herein to be performed by the Paying
Agent. Ahmanson has initially appointed the Trustee as the Paying Agent.
Ahmanson will notify the Holder, in accordance with the Indenture, of any
change in the Paying Agent or its address.
Section 3. Redemption. If so specified on the face hereof, Ahmanson
may at its option redeem this Note in whole or from time to time in part on or
after the date designated as the Initial Redemption Date on the face hereof at
prices declining from a premium specified on the face hereof, if any, to par
together with accrued interest to the date of redemption. Ahmanson may exercise
such option by causing a notice of such redemption to be mailed to each Holder
by first class mail, postage prepaid, at least 30 but not more than 60 days
prior to the date of redemption. In the event of redemption of this Note in
part only, a new Note or Notes for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof. If less
than all of the Notes with like tenor and terms to this Note are to be
redeemed, the Notes to be redeemed shall be selected by the Trustee by such
method as the Trustee shall deem fair and appropriate.
Section 4. Repayment. If so specified on the face hereof, and subject
to the terms of the Indenture, this Note will be repayable prior to the Stated
Maturity at the option of the Holder on the Optional Repayment Dates shown on
the face hereof at a price equal to 100% of the principal amount hereof or, if
this Note is a Discounted Security (as specified on the face hereof), at the
applicable Optional Repayment Price shown on the face hereof, together with
accrued interest to the date of repayment.
Section 5. Sinking Fund. This Note will not be subject to any sinking
fund.
Section 6. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount payable in the event of redemption or repayment, or declaration of
acceleration following an Event of Default, prior to the Stated Maturity hereof
in lieu of the principal amount due at such Stated Maturity hereof shall be the
Amortized Face Amount of this Note as of the redemption date, the date of
repayment, or the date of declaration of acceleration, as the case may be. The
"Amortized Face Amount" of this Note shall be the amount equal to (a) the Issue
Price (as set forth on the face hereof) plus (b) that portion of the difference
between the Issue Price and the principal amount hereof that has accrued at the
Yield to Maturity (as set forth on the face hereof) (computed in accordance
with generally accepted United States bond yield computation principles) at the
date as of which the Amortized Face Amount is calculated but in no event shall
the Amortized Face Amount of this Note exceed its principal amount.
Section 7. Events of Default. In case an Event of Default, as defined
in the Indenture, with respect to the Notes shall have occurred and be
continuing, the principal amount of all the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
Section 8. Modifications and Waivers. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of Ahmanson and the rights of the
Holders of the Notes of each series to be affected under the Indenture at any
time by Ahmanson and the Trustee with the consent of the Holders a majority in
principal amount of the Notes at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting, with certain
exceptions as therein provided, the Holders
-10-
<PAGE> 15
of specified percentages in principal amount of the Notes of each series at the
time Outstanding, on behalf of the Holders of all Notes of such series, to
waive compliance by Ahmanson 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 Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note 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
Notes of this series, the Holders of not less than 25% in principal amount of
the Notes 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 Notes 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 Note 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 Note or
of the Indenture shall alter or impair the right of the Holder of this Note,
which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and interest, if any, on this Note at the times, places
and rate herein prescribed.
Section 9. Authorized Denominations. Notes are issuable in registered
form without coupons in the minimum denomination of $1,000, and in any larger
amount that is an integral multiple of $1,000. Notes may be exchanged by the
Holder hereof without charge except for any tax or other governmental charge
imposed in connection therewith, for a like aggregate principal amount of Notes
of other authorized denominations in the manner and subject to the limitations
provided in the Indenture at the office or agency to be maintained by Ahmanson
in The City of New York, New York, or at such other location or locations as
may be provided for in the Indenture.
Section 10. Registration of Transfer. As provided in the Indenture
and subject to certain limitations therein set forth, the transfer of this Note
is registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place
where the principal of and interest on this Note are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the Holder hereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
Section 11. Owners. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as
the owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
Section 12. Defeasance. The Indenture contains provisions, which
apply to this Note, for defeasance at any time of (a) the entire indebtedness
of this Note or (b) certain restrictive covenants and Events of Default with
respect to this Note, subject in either case to compliance by Ahmanson with
conditions set forth in the Indenture.
Section 13. Definitions. All terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them therein.
-11-
<PAGE> 16
Section 14. Governing Law. This Note shall be governed and construed
in accordance with the law of the State of New York.
OPTION TO ELECT REPAYMENT
The undersigned owner of this Note hereby irrevocably elects to have
Ahmanson repay the principal amount of this Note or portion hereof below
designated at the Optional Repayment Price indicated on the face hereof.
<TABLE>
<S> <C>
Dated:
------------------------- -----------------------------------------------------
Signature
Sign exactly as name appears on the front of this Note
[SIGNATURE GUARANTEE - required only if Notes are to be issued
and delivered to anyone other than
the registered holder]
Principal amount to be repaid, if Fill in for registration of Notes if to be issued otherwise than
amount to be repaid is less the to the then registered holder:
principal amount of this Note
(principal amount remaining must be Name:
an authorized denomination) --------------------------------------------------------
Address:
-----------------------------------------------------
--------------------------------------------
(Please print name and address including zip
$ code)
------------------------------ SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
-------------------------------------------------------------
</TABLE>
-12-
<PAGE> 17
-------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - .............. Custodian...........................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
..............................................
(state)
Additional abbreviations may also be used though not in the above list.
-----------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing_____________attorney to transfer said Note on the books of Ahmanson,
with full power of substitution in the premises.
Dated:
-----------------------------
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
-13-
<PAGE> 1
Exhibit 8.1
April 4, 1995
(310) 552-8500 C 00053-00965
H. F. Ahmanson & Company
4900 Rivergrade Road
Irwindale, California 91706
Re: H. F. Ahmanson (the "Company")/
Medium Term Notes, Series A
--------------------------------
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of
the Company's Prospectus Supplement dated April 4, 1995 relating to the
Company's Medium Term Notes, Series A. The Prospectus Supplement is
supplemental to the Company's Prospectus dated April 4, 1995 (the
"Prospectus"), included in the Registration Statement on Form S-3 (Registration
No. 33-57395) filed with the Securities and Exchange Commission on January 23,
1995.
We hereby confirm our opinion set forth under the caption "Certain
United States Federal Income Tax Considerations" in the Prospectus Supplement.
Furthermore, it is our opinion that the discussion under the caption "Certain
United States Federal Income Tax Considerations," to the extent that it
constitutes legal conclusions, is accurate in all material respects.
<PAGE> 2
H. F. Ahmanson & Company
April 4, 1995
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K and further consent to the use of our name
under the caption "Certain United States Federal Income Tax Considerations" in
the Prospectus Supplement.
Very truly yours,
GIBSON, DUNN & CRUTCHER
CA950820.085/5+
