<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 23, 1995
REGISTRATION NO. 33-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
H. F. AHMANSON & COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 95-0479700
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
4900 RIVERGRADE ROAD
IRWINDALE, CALIFORNIA 91706
(818) 960-6311
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
GEORGE G. GREGORY
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
H. F. AHMANSON & COMPANY
4900 RIVERGRADE ROAD
IRWINDALE, CALIFORNIA 91706
(818) 960-6311
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
WITH COPIES TO:
<TABLE>
<S> <C>
BRUCE D. MEYER, ESQ. FRANK H. GOLAY, JR., ESQ.
GIBSON, DUNN & CRUTCHER SULLIVAN & CROMWELL
2029 CENTURY PARK EAST 444 SOUTH FLOWER STREET
LOS ANGELES, CALIFORNIA 90067 LOS ANGELES, CALIFORNIA 90071
(310) 552-8500 (213) 955-8000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement as
determined by market conditions.
------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
==================================================================================================
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE OFFERING OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PRICE(1)(2) PRICE(1)(2) FEE
- --------------------------------------------------------------------------------------------------
Debt Securities............... $500,000,000 100% $500,000,000 $172,414
==================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee.
(2) If any of these securities are issued at a discount from their principal
amount, the principal amount will be increased such that the aggregate
offering price will equal $500,000,000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may
not be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer
to buy nor shall there be any sale of these securities in any State in
which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED JANUARY 23, 1995
(LOGO) H.F. AHMANSON & COMPANY
DEBT SECURITIES
------------------------
H. F. Ahmanson & Company, a Delaware corporation ("Ahmanson" and,
collectively with its subsidiaries, the "Company"), may offer, from time to
time, in one or more series, its unsecured debt securities (the "Debt
Securities"), having such prices and terms as are determined in light of market
conditions at the time of sale. The Prospectus Supplement accompanying this
Prospectus sets forth, with respect to the particular series of Debt Securities
for which this Prospectus and the Prospectus Supplement are being delivered, the
specific aggregate principal amount, denominations (which may be in United
States dollars, in any other currency or in composite currencies), maturity,
rate (which may be fixed or variable) and time of payment of any interest,
purchase price, any terms for redemption or other special terms and the names of
the underwriters, if any. The Debt Securities may be unsecured Debt Securities
(the "Senior Debt Securities") or unsecured and subordinated Debt Securities
(the "Subordinated Debt Securities"). The Senior Debt Securities, when issued,
will rank on a parity with all other unsecured Senior Indebtedness (as defined
herein) of Ahmanson, and the Subordinated Debt Securities, when issued, will be
subordinate in right of payment to all obligations of Ahmanson to its other
creditors, except obligations ranking on a parity with or junior to the
Subordinated Debt Securities.
Offers to purchase the Debt Securities may be solicited from time to time
by such persons as are named in any related supplement to a Prospectus
Supplement (a "Pricing Supplement"), as agents (the "Agents"), on behalf of the
Company. Debt Securities may also be sold to underwriters, which may include the
Agents and others, acting as principals for their own accounts or for public
offering pursuant to offering terms fixed at the time of sale. In addition, the
Company has reserved the right to sell the Debt Securities directly through
other agents or to investors on its own behalf. See "Plan of Distribution."
THE DEBT SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS
OF ANY SAVINGS BANK OR NON-BANK SUBSIDIARY OF THE COMPANY AND ARE NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND, SAVINGS
ASSOCIATION INSURANCE FUND OR ANY OTHER GOVERNMENT AGENCY.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
Prior to issuance there will have been no market for the Debt Securities,
and there can be no assurance that a secondary market for any such Debt
Securities will develop. This Prospectus may not be used to consummate sales
of any Debt Securities unless accompanied by a Prospectus Supplement.
------------------------
The date of this Prospectus is , 1995.
<PAGE> 3
AVAILABLE INFORMATION
Ahmanson has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all amendments
and exhibits thereto, the "Registration Statement") under the Securities Act of
1933, as amended. This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is made to the Registration Statement.
Ahmanson is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports and other information with the Commission. Reports, proxy statements and
other information concerning Ahmanson may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the Commission's regional offices at
Seven World Trade Center, Suite 1300, New York, New York 10048 and Room 1400,
Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of
that material may be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, reports, proxy statements and other information concerning
Ahmanson may be inspected at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York, and the Pacific Stock Exchange, 115 Sansome
Street, 2nd Floor, San Francisco, California 94104.
DOCUMENTS INCORPORATED BY REFERENCE
Ahmanson's (a) Annual Report on Form 10-K for the year ended December 31,
1993, (b) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1994,
June 30, 1994 and September 30, 1994 and (c) the Current Reports on Form 8-K
dated February 9, 1994 and August 24, 1994, and all documents filed with the
Commission by Ahmanson pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act (which include Ahmanson's Annual Reports on Form 10-K and Quarterly
Reports on Form 10-Q) subsequent to the date of this Prospectus and prior to the
termination of the offering of the Debt Securities made hereby shall be deemed
to be incorporated by reference into this Prospectus. Any statement contained in
a document deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein, in the Prospectus Supplement or in any other
subsequently filed document that is also incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Any person, including any beneficial owner, receiving a copy of this
Prospectus may obtain without charge, upon request, a copy of any of the
documents incorporated by reference herein, except for the exhibits to such
documents (unless such exhibits are specifically incorporated by reference in
such documents). Written requests should be mailed to: H. F. Ahmanson & Company,
4900 Rivergrade Road, Irwindale, California 91706, Attention: Investor
Relations. Telephone requests may be directed to (818) 814-7986.
2
<PAGE> 4
H. F. AHMANSON & COMPANY
Ahmanson is one of the largest residential real estate-oriented financial
services companies in the United States, owning subsidiaries principally engaged
in the savings bank business and related financial service activities. Ahmanson
was originally organized in 1928 in California and changed its state of
incorporation from California to Delaware in 1985. Ahmanson's executive offices
are located at 4900 Rivergrade Road, Irwindale, California 91706, and its
telephone number is (818) 960-6311.
Approximately 99% of Ahmanson's consolidated revenues in 1993 were derived
from the operations of Home Savings of America, FSB, a federally chartered
savings bank ("Home Savings"), which is wholly owned by Ahmanson and conducts
the majority of its business in California. Home Savings represented over 99% of
Ahmanson's consolidated assets at December 31, 1993. Home Savings is currently
the largest savings institution in the United States. Home Savings is regulated
by the Director (the "OTS Director") of the Office of Thrift Supervision (the
"OTS") and the Federal Deposit Insurance Corporation (the "FDIC") which, through
the Savings Association Insurance Fund (the "SAIF") and the Bank Insurance Fund
("BIF"), insures the deposit accounts of savings institutions, such as Home
Savings. Home Savings is a member of the Federal Home Loan Bank (the "FHLB") of
San Francisco, which is one of the twelve regional banks for federally insured
depository institutions comprising the Federal Home Loan Bank System. Home
Savings is further subject to certain regulations of the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board") governing reserves
required to be maintained against deposits and other matters.
Ahmanson's principal business is attracting funds from the general public
and institutions and originating and investing in residential real estate
mortgage loans, mortgage-backed securities ("MBSs"), such as those issued or
guaranteed by the Federal National Mortgage Association, the Federal Home Loan
Mortgage Corporation and the Government National Mortgage Association, and
investment securities. Ahmanson's primary sources of revenue are interest earned
on mortgage loans and MBSs, income from investment securities, gains on sales of
loans and MBSs, fees earned in connection with loans and deposits, and income
earned on its portfolio of loans serviced for investors. Its principal expense
is interest incurred on interest-bearing liabilities, including deposits and
borrowings.
Ahmanson's principal sources of funds are cash dividends paid to it by Home
Savings and its other subsidiaries, investment income and borrowings. There are
significant restrictions on the ability of Home Savings to pay dividends to
Ahmanson. Savings institution subsidiaries of savings and loan holding
companies, such as Home Savings, must notify the OTS Director of their intent to
declare dividends 30 days before declaration. The OTS Director has the authority
to preclude those institutions from declaring a dividend.
OTS regulations impose limitations upon certain "capital distributions" by
savings institutions, including cash dividends, payments to repurchase or
otherwise acquire an institution's shares, payments to stockholders of another
institution in a cash-out merger and other distributions charged against
capital. The regulations establish a three-tiered system of regulation, with the
greatest flexibility being afforded to institutions that meet or exceed the
OTS's fully phased-in capital requirements. An association meets the fully
phased-in capital requirements if it meets the statutory and regulatory
standards to be applicable on July 1, 1996, after taking into account any
applicable individual minimum capital requirement.
An institution that has capital immediately prior to, and on a pro forma
basis after giving effect to, a proposed capital distribution that is at least
equal to its fully phased-in capital requirements is considered a Tier 1
institution ("Tier 1 Institution"). An institution that has capital immediately
prior to, and on a pro forma basis after giving effect to, a proposed capital
distribution that is at least equal to its minimum regulatory capital
requirement but less than its fully phased-in capital requirement is considered
a Tier 2 institution ("Tier 2 Institution"). An institution that does not meet
its minimum regulatory capital requirement immediately prior to, or on a pro
forma basis after giving effect to, a proposed capital distribution is
considered a Tier 3 institution ("Tier 3 Institution"). At September 30, 1994,
Home Savings qualified as a Tier 1 Institution. The OTS retains discretion to
treat a Tier 1 institution as a Tier 2 or Tier 3 Institution if the OTS
determines that the institution is in need of more than normal supervision and
has provided the institution with notice to that effect.
3
<PAGE> 5
A Tier 1 Institution may, without the approval of but with prior notice to
the OTS, make capital distributions during a calendar year up to the greater of
(1) 100% of its net income to date during the calendar year plus the amount that
would reduce the institution's "surplus capital ratio" (the excess over its
fully phased-in risk-based capital requirement) to one-half of its surplus
capital ratio at the beginning of the calendar year or (2) 75% of the
institution's net income over the most recent four-quarter period (the greater
of (1) and (2) is referred to as the "safe harbor amount"). Any additional
capital distributions would require prior regulatory approval. Tier 2 and Tier 3
Institutions are subject to more restrictive limitations on capital
distributions. The OTS retains the authority to prohibit any capital
distribution otherwise authorized under the regulations if the OTS determines
that the capital distribution would constitute an unsafe or unsound practice.
The OTS has proposed to amend its regulation on capital distributions to
eliminate the three-tiered system. Under the OTS's proposal, savings
institutions that are owned by a holding company, such as Home Savings, would
still have to provide at least 30 days' advance notice of the declaration of a
dividend. However, Home Savings would not be required to obtain advance approval
from the OTS in order to make a distribution in excess of the safe harbor
amount, unless such distribution would cause Home Savings to fail to meet the
OTS's "Prompt Corrective Action" capital standards. The OTS would retain the
authority to prohibit any capital distribution upon a determination that the
making of such distribution would constitute an unsafe or unsound practice, and
would use the safe harbor amount as a "rule of thumb" in making such a
determination. Ahmanson does not anticipate that adoption of the proposed
regulation would have a material impact on its results of operations.
Ahmanson and Home Savings have also agreed with federal regulators that
Home Savings will not pay dividends in any one year that exceed the sum of (i)
50% of the lesser of Home Savings' net income or net operating income in such
year and (ii) the amounts that could have been, but were not, paid as dividends
in prior years pursuant to such agreement, previous similar agreements and
applicable regulations and statutes. In connection with its supervisory
acquisitions, Ahmanson has also agreed with federal regulators to cause Home
Savings' regulatory capital to be maintained at the greater of (i) 3% of Home
Savings' total liabilities, with certain adjustments, and (ii) the level
required by regulation, and to cause sufficient equity capital to be contributed
to Home Savings if necessary to effect compliance with such agreement. In no
event may dividends from Home Savings to Ahmanson reduce Home Savings'
regulatory capital below such level.
Additionally, as of December 31, 1993, Home Savings' accumulated tax
reserves for losses on qualifying real property loans exceeded the reserve that
could have been accumulated under the experience method, and such excess could
be subject to recapture taxes of up to 51% on any dividend that exceeds Home
Savings' current or accumulated earnings and profits as calculated for federal
income tax purposes.
The OTS has adopted regulations (the "Capital Regulations") that establish
three capital requirements--a "core capital requirement," a "tangible capital
requirement" and a "risk-based capital requirement." The capital standards
contained in the Capital Regulations generally must be no less stringent than
the capital standards applicable to national banks. The Capital Regulations
require savings institutions to maintain "core" capital of at least 3% of
adjusted total assets, "tangible" capital of at least 1.5% of adjusted total
assets, and "risk-based" capital of at least 8% of risk-weighted assets. The OTS
has also adopted separate "Prompt Corrective Action" regulations that call for
the OTS to enforce certain restrictions on savings institutions that are
classified as undercapitalized (i.e., that maintain core capital of less than 4%
of adjusted total assets, risk-based capital of less than 8% of risk-weighted
assets, or core capital of less than 4% of risk-weighted assets). The OTS may
establish, on a case-by-case basis, individual minimum capital requirements for
a savings institution that vary from the requirements that would otherwise apply
under the Capital Regulations. The OTS has not established such individual
minimum capital requirements for Home Savings. At December 31, 1994, Home
Savings was in compliance with the Capital Regulations and was not classified as
undercapitalized for purposes of the Prompt Corrective Action regulations.
Home Savings' deposits are insured by the FDIC through the SAIF and the BIF
to the fullest extent permitted by law. The Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA") directed the FDIC to establish by
January 1, 1994 a risk-based system for setting deposit insurance assessments
for FDIC insured institutions such as Home Savings under which an institution's
insurance
4
<PAGE> 6
assessments vary depending on the level of capital the institution holds and the
degree to which it is the subject of supervisory concern to the FDIC. Under the
FDIC's system, the assessment rate for both BIF deposits and SAIF deposits
varies from 0.23% of covered deposits for well-capitalized institutions that are
deemed to have no more than a few minor weaknesses, to 0.31% of covered deposits
for undercapitalized institutions that pose substantial supervisory concern. The
FDIC in the future may determine to change the assessment rates, or the parity
of BIF and SAIF rates, based on the condition of the BIF and the SAIF.
Under current law, the SAIF has three major obligations: beginning in 1995,
to fund losses associated with the failure of institutions with SAIF-insured
deposits; to increase its reserves to 1.25% of insured deposits over a
reasonable period of time; and to make interest payments on debt incurred to
provide funds to the former Federal Savings and Loan Insurance Corporation
("FICO debt"). The reserves of the SAIF are currently lower than the reserves of
the BIF, and the BIF does not have an obligation to pay interest on FICO debt.
Recent legislation authorizes the United States Treasury to provide up to $8
billion to the SAIF, but use of such funds would require additional
Congressional action, and the funds could be used only to cover SAIF losses and
only under limited circumstances. Therefore, in the future, premiums assessed on
deposits insured by the SAIF may be higher than premiums on deposits insured by
the BIF. Such a premium structure could provide institutions whose deposits are
exclusively or primarily BIF-insured (such as almost all commercial banks)
certain competitive advantages over institutions whose deposits are primarily
SAIF-insured (such as Home Savings) in the pricing of loans and deposits and in
lower operating costs. Such a competitive disadvantage could have an adverse
effect on Ahmanson's results of operations.
The OTS is required to prescribe by regulation or guideline minimum
acceptable operational and managerial standards for savings institutions, and
standards for asset quality, earnings and stock valuation. The operational
standards must cover internal controls, loan documentation, credit underwriting,
interest rate exposure, asset growth and employee compensation. Any institution
that fails to meet these standards may be required to submit a plan for
corrective action within 30 days. If a savings institution fails to submit or
implement an acceptable plan, the OTS must order it to correct the safety and
soundness deficiency and may require the institution to take any action that the
OTS determines will best carry out the purpose of prompt corrective action.
The OTS, the FDIC, the Federal Reserve Board and the Office of the
Comptroller of the Currency have jointly published a proposed regulation
prescribing the required safety and soundness standards for regulated financial
institutions. Among other things, the proposed regulation would set out asset
quality standards which specify that the ratio of a depository institution's
classified assets to the sum of (a) its total capital and (b) any allowances for
loan losses not included in total capital should not exceed 100%. Minimum
earnings standards would require that institutions be able to demonstrate pro
forma compliance with capital requirements if net earnings or losses over the
preceding four quarters continue over the next four quarters. If these standards
had been in effect at September 30, 1994, Home Savings would have been in
compliance.
Under recently enacted legislation, effective June 1, 1997, commercial
banks will be able to open branch offices outside of their home state, although
the extent of their ability to branch into a new state will depend on the law of
that state. Federal savings associations such as Home Savings are already able
to branch nationwide, and Home Savings currently operates branch offices in six
states. The effectiveness of the recent legislation will reduce Home Savings'
competitive advantage over commercial banks in this regard, and could increase
competition in the markets in which Home Savings operates.
USE OF PROCEEDS
Unless otherwise disclosed in the accompanying Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be used to make a capital
contribution to Home Savings, to finance future acquisitions and/or for other
general corporate purposes.
5
<PAGE> 7
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the Company is computed by
dividing earnings by fixed charges. Earnings consist primarily of income before
income taxes and fixed charges. Fixed charges represent interest expense and the
proportion of rental expense deemed representative of the interest factor.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER
30, YEAR ENDED DECEMBER 31,
------------ --------------------------------------
1994 1993 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Including interest on deposits........... 1.26 -- (1) -- (2) 1.14 1.14 1.07 1.09
Excluding interest on customer
accounts.............................. 1.87 -- (1) -- (2) 1.81 1.64 1.29 1.35
</TABLE>
- ---------------
(1) For the nine months ended September 30, 1993 fixed charges exceeded earnings
by $297.9 million.
(2) For the year ended December 31, 1993, fixed charges exceeded earnings by
$258.0 million.
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities will be issued under an Indenture (the "Senior
Indenture"), between Ahmanson and a trustee, that will be filed as an exhibit to
or incorporated by reference in the Registration Statement of which this
Prospectus is a part. The Subordinated Debt Securities will be issued under an
Indenture (the "Subordinated Indenture" and collectively with the Senior
Indenture, the "Indenture"), between Ahmanson and a trustee (collectively with
the trustee under the Senior Indenture, the "Trustee"), that will be filed as an
exhibit to or incorporated by reference in the Registration Statement of which
this Prospectus is a part. The following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all of the provisions of the Indenture,
including the definitions therein of certain terms capitalized in this
Prospectus. Wherever particular sections, articles or defined terms of the
Indenture are referred to herein or in a Prospectus Supplement, such sections,
articles or defined terms are incorporated herein or therein by reference.
Unless specific reference is set forth below to the Senior Indenture or the
Subordinated Indenture, the provisions described below are substantially
identical in each such indenture.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered by any Prospectus
Supplement or Prospectus Supplements will be described in such Prospectus
Supplement or Prospectus Supplements relating to such series.
GENERAL
The Indenture does not limit the aggregate amount of Debt Securities that
may be issued thereunder, and Debt Securities may be issued from time to time in
separate series up to the aggregate amount from time to time authorized by
Ahmanson for each series. The Senior Debt Securities will be unsecured and will
rank on a parity with other unsecured Senior Indebtedness of Ahmanson. The
Subordinated Debt Securities will be unsecured and will rank on a parity with
other subordinated debt of Ahmanson and, together with such other subordinated
debt, will be subordinate and junior in right of payment to the prior payment in
full of the Senior Indebtedness of Ahmanson, as described below under
"Subordination."
The applicable Prospectus Supplement or Prospectus Supplements will
describe, to the extent applicable, each of the following terms of the series of
Debt Securities ("Offered Debt Securities") in respect of which this Prospectus
is being delivered: (1) the title of such Debt Securities; (2) any limit on the
aggregate principal amount of such Debt Securities; (3) whether any of such Debt
Securities are to be issuable in registered, bearer or global form and, if such
Securities are to be registered in temporary or permanent global form, the
identity of the depositary for such Global Security, and the terms and
conditions, if any, upon which (i) any interest thereon payable on an Interest
Payment Date prior to the issuance of a permanent Global Security or definitive
bearer Debt Securities will be credited to the accounts of the persons entitled
thereto on
6
<PAGE> 8
such Interest Payment Date and (ii) interests in such Offered Debt Securities in
global form may be exchanged, in whole or in part, for the individual Debt
Securities represented thereby; (4) the person to whom any interest on any
Offered Debt Security of the series will be payable if other than the person in
whose name such Debt Security is registered on the Regular Record Date; (5) the
date or dates on which the Offered Debt Securities will mature; (6) the price
(expressed as a percentage of the aggregate principal amount thereof) at which
such Debt Securities will be issued, and the rate or rates (which may be fixed
or variable) at which such Debt Securities will bear interest, if any; (7) the
date or dates from which any such interest will accrue, the Interest Payment
Dates on which any such interest on the Offered Debt Securities will be payable
and the Regular Record Date for any interest payable on any Interest Payment
Date; (8) each office or agency where the principal of, premium (if any) and
interest on the Offered Debt Securities will be payable; (9) the period or
periods within which, the events upon the occurrence of which, and the price or
prices at which, the Offered Debt Securities may, pursuant to any optional or
mandatory provisions, be redeemed or purchased, in whole or in part, by Ahmanson
and any terms and conditions relevant thereto; (10) the denominations in which
any registered Offered Debt Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof, and the denomination
or denominations in which any Offered Debt Securities that are bearer Debt
Securities will be issuable, if other than the denomination of $5,000; (11) the
currency or currencies, including composite currencies, of payment of principal
of, and any premium and interest on, the Offered Debt Securities if other than
United States dollars; (12) any index or formula used to determine the amount of
payments of principal of and any premium and interest on the Offered Debt
Securities; (13) if other than the principal amount thereof, the portion of the
principal amount of the Offered Debt Securities of the series that will be
payable upon declaration of the acceleration of the maturity thereof; (14) the
applicability of the provisions described under "Restrictive Covenants"; (15)
any Events of Default with respect to the Debt Securities of such series, if not
otherwise set forth under "Events of Default"; (16) the applicability of the
provisions described under "Defeasance"; (17) whether the Offered Debt
Securities are subordinate to any other unsecured indebtedness of Ahmanson; (18)
whether the Offered Debt Securities are being issued in exchange for outstanding
debt securities with one or more persons for resale; and (19) any other terms of
the Offered Debt Securities not inconsistent with the provisions of the
Indenture.
Debt Securities may be issued at a discount from their principal amount.
Certain federal income tax considerations and other special considerations
applicable to any such Original Issue Discount Securities may be described in
the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms and
other information with respect to such issue of Debt Securities and such foreign
currency or currencies or foreign currency unit or units will be set forth in
the applicable Prospectus Supplement.
FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Debt Securities of a series may be issuable in definitive form solely as
registered Debt Securities, solely as bearer Debt Securities, or as both
registered and bearer Debt Securities. Unless otherwise indicated in the
Prospectus Supplement, bearer Debt Securities other than bearer Debt Securities
issued as temporary or permanent Global Securities will have interest coupons
attached. The Indenture also provides that bearer or registered Debt Securities
of a series may be issuable as permanent Global Securities. (Section 201)
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal, premium (if any) and interest on Debt Securities issued in
registered form will be payable, and the exchange of and the transfer of such
Debt Securities will be registrable, at the office or agency of Ahmanson
maintained for such purpose and at any other office or agency maintained for
such purpose. (Sections 301, 305 and 1002) Unless otherwise indicated in the
Prospectus Supplement relating thereto, payment of any installment of interest
on Registered Debt Securities will be made to the person in whose name such
Registered Debt Security is registered at the close of business on the Regular
Record Date for such interest. No bearer Debt Security or coupon appertaining
thereto will be mailed or delivered to any location in the United States, except
as
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otherwise described in the applicable Prospectus Supplement. (Section 303)
Unless otherwise indicated in the applicable Prospectus Supplement, registered
Debt Securities will be issued in denominations of $1,000 or integral multiples
thereof. (Section 302) No service charge will be made for any registration of
transfer or exchange of the Debt Securities, but Ahmanson may require payment of
a sum sufficient to cover any tax or other governmental charge imposed in
connection therewith. (Section 305)
Registered Debt Securities of any series will be exchangeable for other
registered Debt Securities of the same series of authorized denominations and of
a like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both registered and bearer Debt
Securities, at the option of the Holder upon request confirmed in writing, and
subject to the terms of the applicable Indenture, bearer Debt Securities (with
all unmatured coupons, except as provided below, and all matured coupons in
default) of such series will be exchangeable into registered Debt Securities of
the same series of any authorized denominations and of a like aggregate
principal amount, tenor and terms. Bearer Debt Securities surrendered in
exchange for registered Debt Securities between the close of business on a
Regular Record Date or a Special Record Date and the relevant date for payment
of interest shall be surrendered without the coupon relating to such date for
payment of interest, and interest will not be payable in respect of the
registered Debt Security issued in exchange for such bearer Debt Security, but
will be payable only to the Holder of such coupon when due in accordance with
the terms of the applicable Indenture. Bearer Debt Securities will not be issued
in exchange for registered Debt Securities. (Section 305) Each bearer Debt
Security, other than a temporary Global Security issued in bearer form, and each
interest coupon will bear the following legend or any other legend required by
the Internal Revenue Code as then in effect: "Any United States Person who holds
this obligation will be subject to limitations under the United States Federal
income tax laws including the limitations provided in Sections 165(j) and
1287(a) of the Internal Revenue Code."
If the applicable Prospectus Supplement refers to any transfer agent
initially designated by Ahmanson with respect to any series of Debt Securities,
Ahmanson may at any time rescind the designation of any such transfer agent or
approve a change in the location through which any transfer agent acts, except
that, if Debt Securities of a series are issuable solely in registered form,
Ahmanson will be required to maintain a transfer agent in each Place of Payment
for such series and, if Debt Securities of a series are issuable in bearer form,
Ahmanson will be required to maintain a transfer agent in a Place of Payment for
such series located outside the United States. Ahmanson may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 1002)
Ahmanson will not be required (1) to issue, register the transfer of or
exchange Debt Securities of any particular series to be redeemed or exchanged
for a period of fifteen days preceding the first publication of the relevant
notice of redemption or, if registered Debt Securities are outstanding and there
is no publication, the mailing of the relevant notice of redemption or exchange,
(2) to register the transfer of or exchange any registered Debt Securities so
selected for redemption in whole or in part, except the unredeemed or
unexchanged portion of any registered Debt Security being redeemed in part or
(3) to exchange any bearer Debt Security so selected for redemption except that
such bearer Debt Security may be exchanged for a registered Debt Security of
like tenor and terms of that series; provided, however, that such registered
Debt Security shall be surrendered for redemption or exchange. (Section 305)
All moneys paid by Ahmanson to a Paying Agent for the payment of principal
or any premium or interest on any Debt Security that remain unclaimed for two
years after such principal, premium or interest has become due and payable may
be repaid to Ahmanson, and thereafter the Holder of such Debt Security or any
coupon appertaining thereto may look only to Ahmanson for payment thereof.
(Section 1003)
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Global Securities that will be deposited with a Depositary or its nominee
identified in the applicable Prospectus Supplement. In such a case, one or more
Global Securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal amount of outstanding Debt
Securities of the series to be represented by such Global Security or
Securities. Unless and until it is exchanged in whole or in part for Debt
Securities in
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registered form, a Global Security may not be registered for transfer or
exchange except as a whole by the Depositary for such Global Security to a
nominee of such Depositary and except in such circumstances as may be described
in the applicable Prospectus Supplement. (Sections 202 and 305)
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. Ahmanson expects that
the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities that are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by Ahmanson, if such Debt
Securities are offered and sold directly by Ahmanson. Ownership of beneficial
interests in such Global Security will be limited to participants or Persons
that may hold Interests through participants. Ownership of beneficial interests
by participants in such Global Security will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by Persons that hold through a participant
will be shown on, and the transfer of that ownership interest within such
participant will be effected only through, records maintained by such
participant. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in certificated form. The
foregoing limitations and such laws may impair the ability to transfer
beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Securities
represented by such Global Security for all purposes under the Indenture. Unless
otherwise specified in the applicable Prospectus Supplement, owners of
beneficial interests in such Global Security will not be entitled to have Debt
Securities of the series represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in certificated form and will not be considered the
Holders thereof for any purposes under the Indenture, except that the rights of
the beneficial owners of such interests to receive payment of the principal of
and interest on such Securities, on or after the respective due dates expressed
in such Securities, or to institute suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of the beneficial owners of such interests. (Sections 202 and 305)
Accordingly, each Person owning a beneficial interest in such Global Security
must rely on the procedures of the Depositary and, if such Person is not a
participant, on the procedures of the participant through which such Person owns
its interest, to exercise any rights of a Holder under the Indenture. Ahmanson
understands that under existing industry practices, if Ahmanson requests any
action of Holders or an owner of a beneficial interest in such Global Security
desires to give any notice or take any action a Holder is entitled to give or
take under the Indenture, the Depositary would authorize the participants to
give such notice or take such action, and participants would authorize
beneficial owners owning through such participants to give such notice or take
such action or would otherwise act upon the instructions of beneficial owners
owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series that are issuable as bearer Debt Securities
will initially be represented by one or more temporary Global Securities,
without interest coupons, to be deposited with a common depositary, appointed by
Ahmanson, for credit to designated accounts. On and after the date determined as
provided in any such temporary Global
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Security and described in the applicable Prospectus Supplement, but within a
reasonable time, each such temporary Global Security will be exchangeable for
definitive bearer Debt Securities, definitive registered Debt Securities or all
or a portion of a permanent bearer Global Security, or any combination thereof,
as specified in such Prospectus Supplement. No definitive bearer Debt Security
or permanent bearer Global Security delivered in exchange for a portion of a
temporary Global Security shall be mailed or otherwise delivered to any location
in the United States in connection with such exchange. Additional information
regarding restrictions on and special United States federal income tax
consequences relating to temporary Global Securities will be set forth in the
Prospectus Supplement relating thereto.
PAYING AGENTS FOR BEARER DEBT SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement,
payments of principal of and premium, if any, and interest, if any, on bearer
Debt Securities will be payable, subject to any applicable laws and regulations,
at such Paying Agencies outside the United States (or its possessions) as
Ahmanson may appoint from time to time. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of interest on bearer Debt Securities
on any Interest Payment Date will be made only against surrender of the coupon
relating to such Interest Payment Date to a Paying Agent outside the United
States. (Sections 1001 and 1002) No payment with respect to any bearer Debt
Security will be made at any office or Paying Agency maintained by Ahmanson in
the United States nor will any such payment be made by transfer to an account,
or by mail to an address, in the United States. Notwithstanding the foregoing,
payments of principal of and premium, if any, and interest, if any, on bearer
Debt Securities will be made at an office or agency of, and designated by,
Ahmanson located in the United States, if payment of the full amount thereof at
all Paying Agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions, and the Trustee
receives an opinion of counsel that such payment within the United States is
legal. (Section 1002)
The Paying Agents outside the United States initially appointed by Ahmanson
for a series of Debt Securities will be named in the applicable Prospectus
Supplement. Ahmanson may terminate the appointment of any of such Paying Agents
from time to time, except that Ahmanson will maintain at least one Paying Agent
in the City of New York for payments with respect to bearer Debt Securities
under the limited circumstances described above, and at least one Paying Agent
outside the United States so long as any bearer Debt Securities are outstanding,
where such bearer Debt Securities may be presented for payment and may be
surrendered for exchange, provided that so long as any series of Debt Securities
is listed on The International (London) Stock Exchange or any other stock
exchange located outside the United States, and such stock exchange shall so
require, Ahmanson will maintain a Paying Agent in London or any other required
city located outside the United States, as the case may be, for such series of
Debt Securities. (Section 1002)
RESTRICTIVE COVENANTS
The Indenture provides that, unless otherwise specified therein with
respect to a series of Offered Debt Securities, Ahmanson (a) will not (i) sell,
transfer or otherwise dispose of any shares of the 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) will not permit Home Savings to (i) merge or consolidate unless the
surviving entity is Ahmanson or a Controlled Subsidiary or (ii) convey or
transfer its properties and assets substantially as an entirety to any person,
except to Ahmanson or a Controlled Subsidiary. (Section 1008) However, Ahmanson
may avoid this restriction if prior to any such transaction Home Savings
unconditionally guarantees payment when due of the principal of, premium, if
any, and interest on the Debt Securities, Home Savings obtains all regulatory
approvals, if any, required to permit such guarantee, and Ahmanson obtains an
opinion of counsel pertaining to such guarantee. For purposes of these
covenants, Home Savings includes any successor but not a Subsidiary of Home
Savings, "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 Ahmanson and "Voting Stock"
of any Person means stock of any class or classes, however designated, having
ordinary voting power for the
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election of a majority of the board of directors of such Person, other than
stock having such power only by reason of the occurrence of a contingency.
(Sections 101 and 1008)
The Indenture also provides that, unless otherwise specified with respect
to a series of Offered Debt Securities, Ahmanson will 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 such series of Offered Debt Securities is secured equally and
ratably with (or prior to) such indebtedness; provided, however, that Ahmanson
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 Ahmanson 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. Ahmanson may
also avoid this restriction if prior to creating, assuming, incurring or
suffering to exist any such mortgage, pledge, encumbrance, lien or charge, Home
Savings unconditionally guarantees payment when due of the principal of,
premium, if any, and interest on the Debt Securities, Home Savings obtains all
regulatory approvals, if any, required to permit such guarantee, and Ahmanson
obtains an opinion of counsel pertaining to such guarantee.
The Indenture does not restrict Ahmanson from incurring, assuming or
becoming liable for any type of debt or from creating, assuming, incurring or
permitting to exist any mortgage, pledge, encumbrance, lien or charge on its
property (except the Voting Stock of Home Savings). The Indenture does not
require Ahmanson to maintain any financial ratios or specified levels of net
worth or liquidity.
Unless otherwise indicated in the applicable Prospectus Supplement with
respect to a series of Offered Debt Securities, the covenants contained in the
Indenture would not necessarily provide Holders of Debt Securities any
protection in the event of a highly leveraged or other transaction involving
Ahmanson that may adversely affect Holders.
Any additional restrictive covenants with respect to any series of Offered
Debt Securities, and any variations from the foregoing restrictive covenants
applicable to any series of Offered Debt Securities, will be described in the
applicable Prospectus Supplement.
EVENTS OF DEFAULT
Unless otherwise specified in the Indenture relating to a series of Offered
Debt Securities, the following are Events of Default under the Indenture with
respect to Debt Securities of any series: (a) failure to pay principal of or
premium, if any, on any Debt Security of that series when due; (b) failure to
pay any interest on any Debt Security of that series when due, continued for 30
days; (c) failure to make any sinking fund payment, when due, in respect of any
Debt Security of that series; (d) failure to perform any other covenant of
Ahmanson in the Indenture (other than a covenant included in the Indenture
solely for the benefit of a series of Debt Securities other than that series),
continued for 60 days after written notice as provided in the Indenture; (e) a
default under any evidence of indebtedness for money borrowed by Ahmanson or
Home Savings (including a default with respect to Debt Securities of any other
series) having an aggregate principal amount outstanding of at least $25,000,000
or under any instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by Ahmanson or Home
Savings (including the Indenture) having an aggregate principal amount
outstanding of at least $25,000,000, whether such indebtedness exists as of the
date of the Indenture or is thereafter created, which default will constitute a
failure to pay any portion of the principal of such indebtedness when due and
payable or will result in the acceleration of such indebtedness, without such
indebtedness having been discharged, or such acceleration having been rescinded
or annulled, within 35 days after written notice to Ahmanson by the Trustee or
by the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of such series as provided in the Indenture (unless Ahmanson or Home
Savings is contesting the validity of such event in good faith by appropriate
proceedings); (f) certain events of bankruptcy, insolvency or reorganization;
and (g) any other Event of Default provided with respect to Debt Securities of
that series. (Section 501) If an Event of Default with respect to Outstanding
Debt Securities of any series shall occur and be continuing, either the Trustee
or the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of
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that series by notice as provided in the Indenture may declare the principal
amount (or, if the Debt Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all Debt Securities of that series to be due and
payable immediately. However, at any time after a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree based on such acceleration has been obtained, the Holders of
a majority in principal amount of the Outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration. (Section
502) For information as to waiver of defaults, see "Modification and Waiver."
Any additional Events of Default with respect to any series of Offered Debt
Securities, and any variations from the foregoing Events of Default applicable
to any series of Offered Debt Securities will be described in the applicable
Prospectus Supplement.
The Indenture provides that, subject to the duty of the Trustee during an
Event of Default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Indenture
at the request or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable security or indemnity. (Sections 601 and 603)
Subject to certain provisions, including those requiring security or
indemnification of the Trustee, the Holders of a majority in principal amount of
the Outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series. (Section 512)
During all times that Debt Securities are outstanding under the Indenture,
Ahmanson will be required to furnish to the Trustee annually a statement as to
the performance by Ahmanson of its obligations under the Indenture and as to any
default in such performance. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by Ahmanson and
the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected
thereby; provided, however, that no such modification or amendment may, without
the consent of the Holder of each Outstanding Debt Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
principal of, or interest on, any Debt Security; (b) reduce the principal amount
of, the rate of interest on, or the premium, if any, payable upon the redemption
of, any Debt Security; (c) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the maturity thereof; (d) change
the currency of payment of principal of, or premium, if any, or interest on any
Debt Security; (e) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security on or after the Stated Maturity
or Redemption Date thereof; (f) reduce the percentage in principal amount of
Outstanding Debt Securities of any series if the consent of the Holders of such
series is required for modification or amendment of the Indenture or for waiver
of compliance with certain provisions of the Indenture or for waiver of certain
defaults; or (g) in the case of Subordinated Debt Securities, modify the
provisions of the Indenture with respect to subordination of such Subordinated
Debt Securities in a manner adverse to the Holders. (Section 902) The Holders of
at least a majority in principal amount of the Outstanding Debt Securities of
any series may on behalf of the Holders of all Debt Securities of that series
waive, insofar as that series is concerned, compliance by Ahmanson with certain
covenants of the Indenture. (Section 1009) The Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of any series
may, on behalf of the Holders of all Debt Securities of that series, waive any
past default under the Indenture with respect to that series, except a default
in the payment of the principal of, or premium, if any, or interest on, any Debt
Security of that series or in respect of a provision that under the Indenture
cannot be modified or amended without the consent of the Holder of each
Outstanding Debt Security of the series affected. (Section 513)
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series issued thereunder if Debt Securities of that series
are issuable in whole or in part as bearer Debt Securities. (Section 1401 of the
Senior Indenture, Section 1501 of the Subordinated Indenture) A meeting may be
called
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at any time by the Trustee for such Debt Securities, or upon the request of
Ahmanson or the Holders of at least 10% in principal amount of the Outstanding
Debt Securities of such series, in any such case upon notice given in accordance
with the Indenture with respect thereto. (Section 1402 of the Senior Indenture,
Section 1502 of the Subordinated Indenture) Except as limited by the proviso in
the first sentence of the preceding paragraph, any resolution presented at a
meeting or adjourned meeting at which a quorum is present may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series; provided, however, that, except as
limited by the proviso in the first sentence of the preceding paragraph, any
resolution with respect to any demand, consent, waiver or other action that may
be made, given or taken by the Holders of a specified percentage that is less
than a majority in principal amount of the Outstanding Debt Securities of a
series issued under an Indenture may be adopted at a meeting or adjourned
meeting at which a quorum is present by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Debt Securities
of that series. (Section 1404 of the Senior Indenture, Section 1504 of the
Subordinated Indenture)
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with the applicable Indenture
will be binding on all Holders of Debt Securities of that series and the related
coupons issued under that indenture. The quorum at any meeting of Holders of a
series of Debt Securities called to adopt a resolution, and at any reconvened
meeting, will be persons holding or representing a majority in principal amount
of the Outstanding Debt Securities of such series. (Section 1404 of the Senior
indenture, Section 1504 of the Subordinated Indenture)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Ahmanson, without the consent of any Holders of Outstanding Debt
Securities, may consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to, any Person, and any other Person may
consolidate with or merge into, or transfer or lease its assets substantially as
an entirety to, Ahmanson, provided that (a) the Person (if other than Ahmanson)
formed by such consolidation or into which Ahmanson is merged or which acquires
or leases the assets of Ahmanson substantially as an entirety is a Person
organized and existing under the laws of any United States jurisdiction and
assumes Ahmanson's obligations on the Debt Securities and under the Indenture,
(b) after giving effect to such transaction no Event of Default, and no event
that, after notice or lapse of time or both, would become an Event of Default,
happened and is continuing, and (c) certain other conditions are met. (Section
801)
DEFEASANCE
Unless otherwise indicated in the applicable Prospectus Supplement with
respect to the Debt Securities of a series, Ahmanson, at its option, (i) will be
discharged from any and all obligations in respect of the Debt Securities of
such series (except for certain obligations to register the transfer or exchange
of Debt Securities of such series, to replace destroyed, stolen, lost or
mutilated Debt Securities of such series, and to maintain Paying Agents and hold
moneys for payment in trust) or (ii) need not comply with the provisions under
Section 1005 through 1008, inclusive, in the Indenture, and the occurrence of an
event described in clause (d) under "Events of Default" above with respect to
any such covenant and clauses (e) and (g) of the "Events of Default" above shall
no longer be an Event of Default if, in either case, Ahmanson deposits with the
Trustee, in trust, money or U.S. Government Obligations that through the payment
of interest thereon and principal thereof in accordance with their terms will
provide money in an amount sufficient to pay all the principal of (and premium,
if any) and any interest on the Debt Securities of such series on the dates such
payments are due (which may include one or more redemption dates designated by
Ahmanson) in accordance with the terms of such Debt Securities. (Sections 1302
and 1303) Such a trust may only be established if, among other things: (a) no
Event of Default or event that with the giving of notice or lapse of time, or
both, would become an Event of Default under the Indenture has occurred and is
continuing on the date of such deposit, (b) no Event of Default described under
clause (f) under "Events of Default" above or event that with the giving of
notice or lapse of time, or both, would become an Event of Default described
under such clause (f) shall have occurred and be continuing at any time during
the period ending on the 91st day following such date of deposit, and (c)
Ahmanson shall have delivered an Opinion of Counsel to the effect
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that the Holders of the Debt Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit or defeasance and will
be subject to Federal income tax in the same manner as if such defeasance had
not occurred. In the event Ahmanson omits to comply with its remaining
obligations under the Indenture after a defeasance of the Indenture with respect
to the Debt Securities of any series as described under clause (ii) above, and
the Debt Securities of such series are declared due and payable because of the
occurrence of any Event of Default, the amount of money and U.S. Government
Obligations on deposit with the Trustee may be insufficient to pay amounts due
on the Debt Securities of such series at the time of the acceleration resulting
from such Event of Default. However, Ahmanson will remain liable in respect of
such payments. (Section 1304)
SUBORDINATION
The payment of the principal of and interest on the Subordinated Debt
Securities will, to the extent set forth in the Indenture relating thereto, be
subordinated in right of payment to the prior payment in full of all Senior
Indebtedness (as defined). Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshalling of assets or any
bankruptcy, insolvency, receivership or similar proceedings of Ahmanson, the
holders of all Senior Indebtedness will first be entitled to receive payment in
full of all amounts due or to become due thereon before the Holders of the
Subordinated Debt Securities will be entitled to receive any payment in respect
of the principal of or interest thereon. In the event of the acceleration of the
maturity of any Subordinated Debt Securities, the holders of all Senior
Indebtedness will first be entitled to receive payment in full of all amounts
due thereon before the Holders of the Subordinated Debt Securities will be
entitled to receive any payment upon the principal of or interest thereon. No
payments on account of principal or interest in respect of the Subordinated Debt
Securities may be made if there shall have occurred and be continuing beyond any
applicable grace period a default in any payment with respect to Senior
Indebtedness, or if there shall have occurred an event of default with respect
to any Senior Indebtedness permitting the holders thereof to accelerate the
maturity thereof, or if any judicial proceeding shall be pending with respect to
any such default. (Article Fourteen of the Subordinated Indenture)
By reason of such subordination, in the event of insolvency, Holders of the
Subordinated Debt Securities may recover less, ratably, than other creditors of
Ahmanson, including holders of Senior Indebtedness.
"Senior Indebtedness" is defined in the Indenture to mean the principal of
(and premium, if any) and interest on (a) all indebtedness of Ahmanson
(including indebtedness of others guaranteed by Ahmanson) other than the
Subordinated Debt Securities and other than Ahmanson's 9.875% Subordinated Notes
Due 1999 and 7.875% Subordinated Notes Due September 1, 2004, which is (i) for
money borrowed or (ii) evidenced by a note or similar instrument given in
connection with the acquisition of any businesses, properties or assets of any
kind, (b) obligations of Ahmanson as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles and leases of property or assets made as part of any sale
and lease-back transaction to which Ahmanson is a party and (c) amendments,
renewals, extensions, modifications and refundings of any such indebtedness or
obligation, unless in any case in the instrument creating or evidencing any such
indebtedness or obligation or pursuant to which the same is outstanding it is
provided that such indebtedness or obligation is not superior in right of
payment to the Subordinated Debt Securities or such indebtedness or obligation
is subordinated to senior indebtedness of Ahmanson to substantially the same
extent as the Subordinated Debt Securities are subordinated to the Senior
Indebtedness, in each case whether such indebtedness or obligation is
outstanding on the date of the Indenture or thereafter created, incurred or
assumed. (Section 101 of the Subordinated Indenture) The Indenture relating to
the Subordinated Debt Securities does not prohibit or limit the incurrence of
additional Senior Indebtedness.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the state specified in the Indenture and the
applicable Prospectus Supplement. (Section 112)
14
<PAGE> 16
REGARDING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of Ahmanson, to obtain payment of claims in certain
cases, or to realize for its own account on certain property received in respect
of any such claim as security or otherwise. (Section 613) The Trustee will be
permitted to engage in certain other transactions; provided, however, that if it
acquires any conflicting interest and there is a default under the Debt
Securities, it must eliminate such conflict or resign. (Section 608)
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of certain of the United States
federal income tax considerations that may be relevant to the purchase,
ownership and disposition of the Debt Securities by investors who hold the Debt
Securities as a capital asset and does not purport to be a complete analysis of
all the potential tax consequences thereof. The discussion is based upon the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury regulations and
Internal Revenue Service ("IRS") rulings and judicial decisions now in effect,
all of which are subject to change at any time by legislative, judicial or
administrative action. Any such changes could be retroactively applied in a
manner that adversely affects holders of such Debt Securities. Potential
investors should be aware that the discussion does not address all of the tax
considerations that may be relevant to particular investors in light of their
individual circumstances or to holders subject to special treatment under United
States federal income tax laws, such as dealers in securities, insurance
companies, foreign persons, tax-exempt organizations and financial institutions.
EACH PROSPECTIVE INVESTOR SHOULD CONSULT HIS OR HER OWN TAX ADVISOR
CONCERNING THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES, AS WELL AS ALL
APPLICABLE STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF THE PURCHASE,
OWNERSHIP AND DISPOSITION OF ANY SERIES OF THE DEBT SECURITIES OFFERED HEREBY.
DEBT SECURITIES IN GENERAL
Stated Interest. Except in the case of any Debt Securities issued with
original issue discount, interest paid to a holder of any series of Debt
Securities will generally be taken into income in accordance with the holder's
method of accounting for federal income tax purposes. Accordingly, holders of
Debt Securities using the accrual method of accounting will generally be
required to include interest in ordinary income as such interest accrues, while
a holder using the cash method will be required to include interest in income
when cash payments are received (or made available for receipt) by such holder.
Original Issue Discount. If any series of Debt Securities having a maturity
date of more than one year from the date of issue is issued with a stated
redemption price at maturity that exceeds the issue price by more than a
statutory de minimus amount, or does not provide for interest payable at least
annually based upon a fixed rate or certain variable rates (as described in
Treasury Regulations), such series of Debt Securities may be subject to the
original issue discount provisions of the Code. Holders of any series of Debt
Securities subject to the original issue discount provisions will be required to
include such original issue discount in taxable income based on an accrual to
maturity method, regardless of the holders' general method of accounting for
federal income tax purposes. Application of the original issue discount
provisions may result in the recognition of taxable income by holders of Debt
Securities in excess of the actual interest paid for a taxable year with respect
to any series of Debt Securities subject to the original issue discount rules.
Sales of Debt Securities. Subject to the market discount rules discussed
below, gain or loss realized upon a sale or exchange of Debt Securities
generally will be treated as long-term capital gain or loss, provided that the
Debt Securities were held as a capital asset for more than one year, except to
the extent a holder realizes ordinary income attributable to accrued interest.
Market Discount. Purchasers of any Debt Securities should be aware that the
resale of Debt Securities may be affected by the market discount provisions of
the Code. These provisions generally provide that if a subsequent holder of a
debt security purchases the security at a discount in excess of a statutorily
defined de
15
<PAGE> 17
minimus amount, and thereafter recognizes gain upon a disposition (including
upon redemption or at maturity) of the security, the lesser of such gain or the
portion of the market discount that accrued while the security was held by such
holder will be treated as ordinary income at the time of disposition. The holder
of such a market discount security may also be required to defer a portion of
any interest expense that may otherwise be deductible on any indebtedness
incurred or maintained to purchase or carry such a market discount security
until the holder disposes of it in a taxable transaction. If a holder of a debt
security purchased at market discount elects to include market discount in
income currently, however, neither of the foregoing rules would apply.
BEARER SECURITIES
Under Sections 165(j) and 1287(a) of the Code, United States holders of
bearer Debt Securities generally will not be entitled to deduct any loss on such
Debt Securities (including for this purpose any Debt Securities in global form
exchangeable for bearer Debt Securities) or coupons and must treat as ordinary
income any gain realized on the sale or other disposition (including the receipt
of principal) of bearer Debt Securities or coupons thereon (other than bearer
Debt Securities having a maturity of one year or less from their date of
issuance).
Certain information regarding restrictions on the offer, issuance, exchange
and transfer of, and special United States federal income tax considerations
relating to, bearer Debt Securities will be set forth in the applicable
Prospectus Supplement.
FURTHER INFORMATION ON FEDERAL INCOME TAX CONSEQUENCES
Further information concerning the particular federal income tax treatment
of holders of certain series of Debt Securities, including Debt Securities
denominated or payable in foreign currencies or foreign currency units and Debt
Securities issued at a discount or otherwise subject to the original issue
discount provisions of the Code, will be discussed in the Prospectus Supplement
related to such series.
PLAN OF DISTRIBUTION
Ahmanson may sell the Debt Securities to one or more underwriters for
public offering and sale by them or may sell the Debt Securities to investors
directly or through agents. Any such underwriter or agent involved in the offer
and sale of the Debt Securities will be named in the related Prospectus
Supplement. Ahmanson has reserved the right to sell the Debt Securities directly
to investors on its own behalf in those jurisdictions where it is authorized to
do so.
Underwriters may offer and sell the Debt Securities at a fixed price or
prices that may be changed, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices.
Ahmanson also may offer and sell the Debt Securities in exchange for one or more
of its outstanding series of equity or debt securities. Ahmanson also may, from
time to time, authorize dealers, acting as Ahmanson's agents, to offer and sell
the Debt Securities upon such terms and conditions as are set forth in the
related Prospectus Supplement. In connection with the sale of the Debt
Securities, underwriters may receive compensation from Ahmanson in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the Debt Securities for whom they may act as agent. Underwriters
may sell the Debt Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agents.
Any underwriting compensation paid by Ahmanson to underwriters or agents in
connection with the offering of the Debt Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the related Prospectus Supplement. Dealers and agents
participating in the distribution of the Debt Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Debt Securities may be deemed to be
underwriting discounts and commissions. Underwriters, dealers and agents may be
entitled,
16
<PAGE> 18
under agreements entered into with Ahmanson, to indemnification against and
contribution toward certain civil liabilities.
If so indicated in the related Prospectus Supplement, Ahmanson will
authorize dealers acting as Ahmanson's agents to solicit offers by certain
institutions to purchase the Debt Securities from Ahmanson at the public
offering price set forth in the related Prospectus Supplement pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery on
the date or dates stated in a Prospectus Supplement. Each Contract will be for
an amount not less than, and the aggregate amount of the Debt Securities, based
on the liquidation value thereof, sold pursuant to Contracts will be not less
nor more than the respective amounts stated in a Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions, but
will in all cases be subject to the approval of Ahmanson. Contracts will be
subject to the condition that the purchase by an institution of the Debt
Securities covered by Contracts will not at the time of delivery be prohibited
under the laws of any jurisdiction in the United States to which such
institution is subject.
Any Debt Securities issued hereunder will be new issues of securities with
no established trading market. Any underwriters or agents to or through whom
Debt Securities are sold by Ahmanson for public offering and sale may make a
market in such Debt Securities, but such underwriters or agents will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market for
any Debt Securities.
Certain of the underwriters, dealers or agents and their associates may be
customers of, engage in transactions with, and perform services for, Ahmanson
and certain of its affiliates in the ordinary course of business. Except as
otherwise stated in the applicable Prospectus Supplement, any loans and
outstanding commitments to such underwriters, dealers or agents and their
associates will be made on terms, including interest rates and collateral, no
more favorable than those prevailing at the time for comparable transactions
with other persons and will not involve more than normal risk of collectibility.
LEGAL MATTERS
Certain legal matters with respect to the Debt Securities offered hereby
will be passed upon for Ahmanson by Gibson, Dunn & Crutcher, Los Angeles,
California and for any underwriters by counsel named in the related Prospectus
Supplement. Arthur W. Schmutz, a director of Ahmanson, is a retired former
partner of Gibson, Dunn & Crutcher.
EXPERTS
The consolidated financial statements of Ahmanson as of December 31, 1993
and 1992 and for each of the years in the three-year period ended December 31,
1993 included in Ahmanson's Annual Report on Form 10-K for the year ended
December 31, 1993 have been incorporated herein by reference in reliance on the
report of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated herein by reference, and upon the authority of such firm as experts
in auditing and accounting.
17
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated amounts of the expenses of and related to the offering are as
follows:
<TABLE>
<S> <C>
Registration Fee -- Securities and Exchange Commission............ $172,414
Printing and engraving expenses................................... 100,000
Rating agency fees................................................ 100,000
Auditing and accounting fees and expenses......................... 60,000
Legal fees and expenses........................................... 150,000
Blue Sky fees and expenses........................................ 18,000
Trustee fees and expenses......................................... 15,000
Transfer agent fees and expenses.................................. 10,000
Miscellaneous..................................................... 25,000
--------
Total................................................... $650,414
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware, the state of
incorporation of Ahmanson, and the Bylaws of Ahmanson provide for
indemnification of directors and officers. Section 145 of the Delaware General
Corporation Law provides generally that a person sued as a director, officer,
employee or agent of a corporation may be indemnified by the corporation for
reasonable expenses, including attorneys' fees, if, in cases other than actions
brought by or in the right of the corporation, he or she has acted in good faith
and in a manner he or she reasonably believed to be in, or not opposed to, the
best interests of the corporation (and in the case of a criminal proceeding, had
no reasonable cause to believe that his or her conduct was unlawful). Section
145 provides that no indemnification for any claim or matter may be made, in the
case of an action brought by or in the right of the corporation, if the person
has been adjudged to be liable, unless the Court of Chancery or other court
determines that indemnity is fair and reasonable despite the adjudication of
liability. Indemnification is mandatory in the case of a director, officer,
employee or agent who has been successful on the merits, or otherwise, in
defense of a suit against him or her. The determination of whether a director,
officer, employee or agent should be indemnified is made by a majority of
disinterested directors, independent legal counsel or the stockholders.
Directors and officers of Ahmanson are covered under policies of directors'
and officers' liability insurance with coverage aggregating $55,000,000. The
directors and executive vice presidents of Ahmanson and all other officers
serving Ahmanson as first vice presidents or in a higher position are parties to
Indemnity Agreements with Ahmanson (the "Indemnity Agreements"). The Indemnity
Agreements provide indemnification for the directors and covered officers in the
event the directors and officers' liability insurance does not cover a
particular claim for indemnification or if such a claim or claims exceed the
limits of such coverage. The Indemnity Agreements are generally intended to
provide indemnification for any amounts a director or covered officer is legally
obligated to pay because of claims arising out of the director's or officer's
service to Ahmanson, Home Savings or any other subsidiary of Ahmanson.
II-1
<PAGE> 20
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
4.1 Form of Indenture for Senior Debt Securities
4.2 Form of Indenture for Subordinated Debt Securities
5.1 Opinion of Gibson, Dunn & Crutcher regarding issuance
12.1 Statement Regarding Computation of Consolidated Ratios of Earnings to Fixed
Charges
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Gibson, Dunn & Crutcher (included in its opinion filed as Exhibit
5.1)
24.1 Power of Attorney
25 Statement of Eligibility of Trustee on Form T-1
</TABLE>
ITEM 17. UNDERTAKINGS.
Ahmanson hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933 (the "Act"), each filing of Ahmanson's Annual
Report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of Ahmanson pursuant to
the foregoing provisions, or otherwise, Ahmanson has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by Ahmanson of expenses incurred or paid by a director, officer
or controlling person of Ahmanson in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, Ahmanson will, unless in the
opinion of its counsel that matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
Ahmanson hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in the post-effective amendment by
those paragraphs is contained in periodic reports filed by Ahmanson
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-2
<PAGE> 21
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act ("Act") in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irwindale, State of California, on the 20th of
January, 1995.
H. F. AHMANSON & COMPANY
By /s/ KEVIN M. TWOMEY
------------------------------------
Kevin M. Twomey
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been duly signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES CAPACITY DATE
---------- -------- ----
<S> <C> <C>
Director January , 1995
- --------------------------------------------
Robert H. Ahmanson
Director January , 1995
- --------------------------------------------
William H. Ahmanson
Director January , 1995
- ---------------------------------------------
Byron Allumbaugh
/s/ RICHARD M. BRESSLER* Director January 20, 1995
- ---------------------------------------------
Richard M. Bressler
/s/ LODWRICK M. COOK* Director January 20, 1995
- ---------------------------------------------
Lodwrick M. Cook
Director January , 1995
- ---------------------------------------------
Richard H. Deihl
/s/ ROBERT M. DE KRUIF* Director January 20, 1995
- ---------------------------------------------
Robert M. De Kruif
Director January , 1995
- ---------------------------------------------
David S. Hannah
/s/ DELIA M. REYES* Director January 20, 1995
- ---------------------------------------------
Delia M. Reyes
</TABLE>
II-4
<PAGE> 23
<TABLE>
<CAPTION>
SIGNATURES CAPACITY DATE
---------- -------- ----
<S> <C> <C>
/s/ CHARLES R. RINEHART* Director, January 20, 1995
- ------------------------------------------- Principal Executive Officer
Charles R. Rinehart
/s/ ELIZABETH SANDERS* Director January 20, 1995
- -------------------------------------------
Elizabeth Sanders
/s/ ARTHUR W. SCHMUTZ* Director January 20, 1995
- -------------------------------------------
Arthur W. Schmutz
/s/ WILLIAM D. SCHULTE* Director January 20, 1995
- -------------------------------------------
William D. Schulte
/s/ KEVIN M. TWOMEY Executive Vice President and January 20, 1995
- ------------------------------------------- Chief Financial Officer
Kevin M. Twomey (Principal Financial Officer)
/s/ GEORGE MIRANDA* First Vice President and January 20, 1995
- ------------------------------------------- Principal Accounting Officer
George Miranda
*By: /s/ KEVIN M. TWOMEY
- -------------------------------------------
Kevin M. Twomey
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 24
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
-------- ----------- -------------
<S> <C> <C>
4.1 Form of Indenture for Senior Debt Securities...............
4.2 Form of Indenture for Subordinated Debt Securities.........
5.1 Opinion of Gibson, Dunn & Crutcher regarding issuance......
12.1 Statement Regarding Computation of Consolidated Ratios of
Earnings to Fixed Charges..................................
23.1 Consent of KPMG Peat Marwick LLP...........................
23.2 Consent of Gibson, Dunn & Crutcher (included in its opinion
filed as Exhibit 5.1)......................................
24.1 Power of Attorney..........................................
25 Statement of Eligibility of Trustee on Form T-1............
</TABLE>
<PAGE> 1
EXHIBIT 4.1
================================================================================
H. F. AHMANSON & COMPANY
TO
______________________, Trustee
_________
INDENTURE
Dated as of _________ __, 19__
_________
SENIOR DEBT SECURITIES
================================================================================
<PAGE> 2
H. F. AHMANSON & COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF ______________________
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<S> <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> <C>
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 . . . . . . . . . . . . . . . . . . 13
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 . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 303. Execution, Authentication, Delivery and Dating. . . . . . . . . . . . . . 21
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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 . . . . . . . . . . . . . . . . . . . . . . . 34
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . 34
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. . . . . . . . . . . . 38
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . 39
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . . . . . . . 43
Section 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . 43
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . . . . . . 43
Section 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 515. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . 44
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. . . . . . . . . . 47
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 . . . . . . . . . . . . 49
Section 611. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . . . 51
Section 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . 52
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 . . . . . . . . . . . . 55
Section 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . 55
Section 702. Preservation of Information; Communications to Registered Holders . . . . 55
</TABLE>
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<TABLE>
<S> <C> <C>
Section 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 704. Reports by Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease . . . . . . . . . . 57
Section 801. Company May Consolidate, Etc., Only on Certain Terms. . . . . . . . . . . 57
Section 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE NINE Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 901. Supplemental Indentures Without Consent of Holders. . . . . . . . . . . . 58
Section 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . 60
Section 903. Execution of Supplemental Indentures. . . . . . . . . . . . . . . . . . . 61
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 61
Section 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . 61
Section 906. Reference in Securities to Supplemental Indentures. . . . . . . . . . . . 61
ARTICLE TEN Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 1001. Payment of Principal Premium and Interest . . . . . . . . . . . . . . . . 62
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . 62
Section 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . 63
Section 1004. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . 65
Section 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 1007. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . 66
Section 1008. Restrictions on Sale or Pledge of Stock of Home Savings . . . . . . . . . 66
Section 1009. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . 67
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C> <C>
ARTICLE ELEVEN Redemption of Securities . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1101. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . 67
Section 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . 68
Section 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . 69
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE TWELVE Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 1201. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . 71
Section 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . 72
ARTICLE THIRTEEN Defeasance and Covenant Defeasance . . . . . . . . . . . . . . . . . . . 72
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance. . . . . . . 72
Section 1302. Defeasance and Discharge. . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . 73
Section 1305. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . 76
Section 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE FOURTEEN Meetings of Holders of Securities . . . . . . . . . . . . . . . . . . . . 77
Section 1401. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . 77
Section 1402. Call, Notice and Place of Meetings. . . . . . . . . . . . . . . . . . . . 77
</TABLE>
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<TABLE>
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Section 1403. Persons Entitled to Vote at Meetings. . . . . . . . . . . . . . . . . . . 78
Section 1404. Quorum; Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings . . . 79
</TABLE>
vii
<PAGE> 9
THIS INDENTURE, dated as of _________ __, 19__, 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 _____________,
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 principal office of the Trustee in
the City of New York at which at any particular time its corporate trust
business shall be administered; initially the Corporate Trust Office shall be
located at _________________.
"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.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
4
<PAGE> 13
"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 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
5
<PAGE> 14
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;
(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
6
<PAGE> 15
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.
"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
7
<PAGE> 16
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 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
8
<PAGE> 17
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.
"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
9
<PAGE> 18
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;
(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
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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, 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
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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 ownership of Registered Securities shall be proved
by the Security Register.
The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
Depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that as of the date therein mentioned such Person had on
deposit with such Depositary, or exhibited to it, the Bearer Securities in the
amount and with the serial numbers therein described, or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee of the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to the Trustee by some other Person, (3) such
Bearer Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding.
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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.
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,
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(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 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
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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.
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.
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Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the law of the State of _____________, 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 or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Securities 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, 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
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to the delivery of the Company Order contemplated by Section 303 or 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:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
As Trustee
By
--------------------------------------
Authorized Signatory
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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;
(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
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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 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,
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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;
(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;
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(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.
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
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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 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
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
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(subject to Section 601) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(1) if the forms of such Securities and any coupons has been
established by or pursuant to Board Resolution as permitted by Section 201,
that such form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to Board Resolution as permitted by Section 301,
that such terms have been established in conformity with the provisions of
this Indenture; and
(3) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.
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:
(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
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(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 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
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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 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.
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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 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
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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 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.
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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 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
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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 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
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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.
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.
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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 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
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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 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
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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 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
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be promptly cancelled by it. All Bearer Securities and unmatured coupons so
delivered shall be held by the Trustee and, upon instruction by a Company
Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tenor or the related coupon, pursuant to Section 306. All Bearer
Securities and unmatured coupons held by the Trustee pending such cancellation
or reissuance shall be deemed to be delivered for cancellation for all purposes
of this Indenture and the Securities. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder that the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder that the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a
Company Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. Certificate by a Person Entitled to Delivery of a Bearer
Security.
Whenever any provision of this Indenture contemplates that a Person
shall be entitled to delivery of a Bearer Security, no delivery of such Bearer
Security shall be made unless and until the Company shall have received
certification substantially in the form of Exhibit A-1 and, if applicable,
Exhibit A-2 and Exhibit B hereto, with only such changes as shall be approved
by the Company then consented to by the Trustee whose consent shall not be
unreasonably withheld, and any additional certification as 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
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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 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
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(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):
(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
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(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 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
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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.
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.
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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.
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,
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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 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
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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
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.]
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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 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
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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 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
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(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may, on behalf of the Holders of all
the Securities of such series and any related coupons, waive any past
default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of or any premium
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof that
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, however, that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Trustee
or the Company.
Section 515. Waiver of Usury, Stay or Extension Laws.
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
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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.
(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
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in accordance with the direction of the Holders of not less than a
majority in principal amount of the Outstanding Securities of any
series, determined as provided in Section 512, relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities
of such series.
No provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any personal financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 602. Notice of Defaults.
The Trustee shall give notice of any default known to the Trustee with
respect to the Securities of any series when, as and to the extent provided by
the Trust Indenture Act and in the manner provided by Section 106 hereof;
provided, however, that in the case of any default of the character specified
in Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the default is known to the
Trustee. For the purpose of this Section, the term "default" means any event
that is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(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
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action hereunder, the Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney upon reasonable advance written
notice and during regular business hours; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
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.
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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
(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
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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.
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
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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 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
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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 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
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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.
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,
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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
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
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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.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
----------------------------
As Trustee
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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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Registered
Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Registered Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Registered Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished.
The rights of the Registered Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
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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 199_.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) that the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture
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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;
(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;
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(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.
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
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(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
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(8) to cure any ambiguity, to correct or supplement any provision
herein that may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under
this Indenture; provided, however, that such action pursuant to this clause
(8) shall not adversely affect the interests of the Holders of Securities
of any series (except a series consenting pursuant to Section 902) in any
material respect.
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Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502,
or change the coin or currency in which any Security or any premium or
interest thereon is payable or impair the right to institute suit for the
enforcement of any such payment or delivery on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to the
"Trustee" and concomitant changes in this Section and Section 1009, or the
deletion of this proviso, in accordance with the requirements of Sections
611 and 901(7).
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A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities, or that modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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
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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 Securities of that series may be surrendered
for registration of transfer, exchange or conversion and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, subject to any laws and regulations
applicable thereto, an office or agency in a Place of Payment for such series
which is located outside the United States where Securities of such series and
the related coupons may be presented and surrendered for payment; provided,
however, that if the Securities of such series are 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
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prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail
to maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the address of the Trustee, except
that Bearer Securities of that series and the related coupons may be presented
and surrendered for payment at the place specified for that purpose as
contemplated by Section 301 or, if no such place is specified, at
____________________________ [the main office of the Trustee in London] and the
Company hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands.
No payment of principal or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States, by check mailed to
any address in the United States, by transfer to an account located in the
United States or upon presentation or surrender in the United States of a
Bearer Security or coupon for payment, even if the payment would be credited to
an account located outside of the United States; provided, however, that if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any interest on any such Bearer Security shall be made at the
Office of the Company's paying agent in the Borough of Manhattan, the City of
New York, if (but only if) payment in Dollars of the full amount of such
principal, interest or additional amounts, as the case may be, at all offices
or agencies outside the United States 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.
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.
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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 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
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the Company) shall be discharged from such trust; and the Holder of such
Security or coupon shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, the City of New York,
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
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
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shall prevent the Company from discontinuing the operation or maintenance of
any of such properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1008. Restrictions on Sale or Pledge of Stock of Home Savings.
The Company (a) shall not (i) sell, transfer or otherwise dispose of
any shares of Voting Stock of Home Savings or (ii) permit Home Savings to
issue, sell or otherwise dispose of shares of its Voting Stock unless in either
case Home Savings remains a Controlled Subsidiary, and (b) shall not permit
Home Savings to (i) merge or consolidate unless the surviving entity is the
Company or a Controlled Subsidiary or (ii) convey or transfer its properties
and assets substantially as an entirety to any Person, except to the Company or
a Controlled Subsidiary. "Controlled Subsidiary" means any Person at least 80%
of the outstanding shares of Voting Stock (except for directors' qualifying
shares) of which is at the time owned directly or indirectly by the Company.
The Company shall not create, assume, incur or suffer to exist, as
security for indebtedness for borrowed money, any 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
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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.
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
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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.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities that has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his or her address
appearing in the Security Register, but failure by the Company to give such
notice by
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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
(7) the CUSIP numbers of the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company and shall be
irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
that are to be redeemed on that date.
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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.
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.
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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 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
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of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have
not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
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
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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.
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.
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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 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
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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.
(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
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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 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
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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 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.
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(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.
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.
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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 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
79
<PAGE> 88
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.
80
<PAGE> 89
--------------------
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:
- -------------------------------------
[TRUSTEE]
By:
---------------------
Attest:
- -------------------------------------
81
<PAGE> 90
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
CERTIFICATE
H. F. AHMANSON & COMPANY
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF
SECURITIES TO BE DELIVERED]
Reference is hereby made to the Indenture dated as of _________________ (the
"Indenture") between H. F. Ahmanson & Company, a Delaware corporation, and
_____________________, as trustee (the "Trustee") covering the above-captioned
Securities. This is to certify that as of the date hereof, __________________
principal amount of Securities credited to you for our account (i) is owned by
persons that are not United States Persons, as defined below; (ii) is owned by
United States Persons that are (a) foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(i)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the Notes through
foreign branches of United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
encloses herewith a certificate in the form of Exhibit A-2 to the Indenture);
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.153-5(c)(2)(i)(D)(7)), which United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) certify that they have not acquired the Notes
for purposes of resale directly or indirectly to a United States Person or to a
person within the United States or its possessions.
[Insert if certificate does not relate to an interest payment - We
undertake to advise you by tested telex followed by written confirmation if the
above statement as to beneficial ownership is not correct on the date of
delivery of the above-captioned Securities in bearer form as to all of such
Securities with respect to such of said Securities as then appear in your books
as being held for our account.] We understand that this certificate is
required in connection with United States tax laws. We irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District
82
<PAGE> 91
of Columbia), a corporation, partnership or other entity created or organized
in or under the laws of the United States or any political subdivision thereof
or an estate or trust that is subject to United States Federal income taxation
regardless of the source of its income.
[This certificate excepts and does not relate to ____________________
principal amount of Securities credited to you for our account and to which we
are not now able to make the certification set forth above. We understand
that definitive Securities cannot be delivered and interest cannot be paid
until we are able to so certify with respect to such principal amount of
Securities.]*
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
83
<PAGE> 92
EXHIBIT A-2
[FORM OF CERTIFICATE OF STATUS AS A FOREIGN BRANCH OF A
UNITED STATES FINANCIAL INSTITUTION]
CERTIFICATE
H. F. AHMANSON & COMPANY
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF
SECURITIES TO BE DELIVERED]
Reference is hereby made to the Indenture dated as of
_______________, the ("Indenture"), between H. F. Ahmanson & Company and
______________________, as Trustee, relating to the offering of the
above-captioned Securities (the "Securities"). Unless herein defined, terms
used herein have the same meaning as given to them in the Indenture.
The undersigned represents that it is a branch located outside
the United States of a United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or
the issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Securities in bearer
form.
We understand that this certificate is required in connection
with the United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any
84
<PAGE> 93
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:
----------------------------
85
<PAGE> 94
EXHIBIT B
[Form of Certificate to be given by Euroclear
and Cedel S.A. in connection with the exchange of
all or a portion of a temporary Global Security or to
obtain interest prior to exchange]
Certificate
H. F. AHMANSON & COMPANY
[Insert title of Securities to be delivered]
We refer to that portion, _____________, of the Global
Security representing the above-captioned issue [which is herewith
submitted to be exchanged for definitive Securities] [for which we are seeking
to obtain payment of interest] (the "Submitted Portion"). This is to certify,
pursuant to the Indenture dated ____________ (the "Indenture") between H. F.
Ahmanson & Company and ______________________, as Trustee (the "Trustee), that
we have received in writing, by tested telex or by electronic transmission from
member organizations with respect to each of the persons appearing in our
records as being entitled to a beneficial interest in the Submitted Portion a
Certificate of Beneficial Ownership by a Non-United States Person or by Certain
Other Person, [and, in some cases, a Certificate of Status as a Foreign Branch
of a United States Financial Institution, authorizing us to inform the issuer
or issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder] substantially in the form of Exhibit A-1 [and A-2] to
the Indenture.
We hereby request that you deliver to the office of
____________________ in _________________ definitive Bearer Securities in
the denominations on the attached Schedule A.
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such certificates to
the effect that the statements made by them with
86
<PAGE> 95
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
================================================================================
H. F. AHMANSON & COMPANY
TO
______________________, Trustee
_________
INDENTURE
Dated as of _________ __, 19__
_________
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE> 2
H. F. AHMANSON & COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF ______________________
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<S> <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> <C>
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. . . . . . . . . . . . . . . . . . . . 12
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. . . . . . . . . . . . . . . . . . . . . . . . 16
Section 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . . . 16
Section 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE TWO Security Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 202. Form of Legend for Global Securities. . . . . . . . . . . . . . . . . 17
Section 203. Form of Trustee's Certificate of Authentication. . . . . . . . . . . 18
ARTICLE THREE The Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . . . . . 18
Section 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 303. Execution, Authentication, Delivery and Dating. . . . . . . . . . . . 22
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Section 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 305. Registration, Registration of Transfer and Exchange . . . . . . . . . 27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities or Coupons . . . . . 31
Section 307. Payment of Interest; Interest Rights Preserved. . . . . . . . . . . . 32
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . 35
Section 311. Certificate by a Person Entitled to Delivery of a Bearer Security . . 35
ARTICLE FOUR Satisfaction and Discharge. . . . . . . . . . . . . . . . . . . . . . 35
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . 35
Section 402. Application of Trust Money. . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE FIVE Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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. . . . . . . . . . . . . . . . . . . 41
Section 505. Trustee May Enforce Claims Without Possession of Securities . . . . . 41
Section 506. Application of Money Collected. . . . . . . . . . . . . . . . . . . . 42
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
Section 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . 44
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . . . . 44
Section 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . 44
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 515. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . 45
ARTICLE SIX The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . 46
Section 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 47
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 . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 607. Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . 49
Section 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . 50
Section 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . 50
Section 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . 50
Section 611. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . 52
Section 612. Merger, Conversion, Consolidation or Succession to Business . . . . . 53
Section 613. Preferential Collection of Claims Against Company . . . . . . . . . . 54
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . 54
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company . . . . . . . . . . 56
Section 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . 56
Section 702. Preservation of Information; Communications to Registered Holders . . 56
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C> <C>
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 . . . . . . . . . . . . . . . . . . . . . . . 59
Section 901. Supplemental Indentures Without Consent of Holders. . . . . . . . . . 59
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 . . . . . . . . . . . . . . . . . 62
Section 906. Reference in Securities to Supplemental Indentures. . . . . . . . . . 62
ARTICLE TEN Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 1001. Payment of Principal Premium and Interest . . . . . . . . . . . . . . 63
Section 1002. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . 64
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
Section 1009. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . 68
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C> <C>
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 . . . . . . . . . . . . . . . . . . 78
Section 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE FOURTEEN Subordination of Securities . . . . . . . . . . . . . . . . . . . . . 79
Section 1401. Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . 79
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc. . . . . . . . . . . . 79
</TABLE>
vi
<PAGE> 8
<TABLE>
<S> <C> <C>
Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 1404. No Payment When Senior Indebtedness in Default. . . . . . . . . . . . 81
Section 1405. Payment Permitted if No Default . . . . . . . . . . . . . . . . . . . 82
Section 1406. Subrogation to Rights of Holders of Senior Indebtedness . . . . . . . 82
Section 1407. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . 83
Section 1408. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . 83
Section 1409. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . 83
Section 1410. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 1411. Reliance on Judicial Order or Certificate of Liquidating Agent. . . . 85
Section 1412. Trustee Not Fiduciary for Holders of Senior Indebtedness. . . . . . . 85
Section 1413. Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 1414. Article Applicable to Payment Agents. . . . . . . . . . . . . . . . . 86
ARTICLE FIFTEEN Meetings of Holders of Securities . . . . . . . . . . . . . . . . . . 86
Section 1501. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . 86
Section 1502. Call, Notice and Place of Meetings. . . . . . . . . . . . . . . . . . 86
Section 1503. Persons Entitled to Vote at Meetings. . . . . . . . . . . . . . . . . 87
Section 1504. Quorum; Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
</TABLE>
vii
<PAGE> 9
THIS INDENTURE, dated as of _________ __, 19__, 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
___________________________, 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 and
subordinated 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
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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.
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"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.
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<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 principal office of the Trustee in
the City of New York at which at any particular time its corporate trust
business shall be administered; initially the Corporate Trust Office shall be
located at ____________________________________.
"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.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
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<PAGE> 13
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated
in Section 301.
"Exchange Rate Agent" shall have the meaning specified as
contemplated in Section 301.
"Exchange Rate Officer's Certificate", with respect to any date
for the payment of principal of (and premium, if any) and interest on any series
of Securities, means a certificate setting forth the applicable Exchange Rate
and the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in
ECU, and other composite currency or Foreign Currency, and signed by the
Chairman of the Board, the Vice-Chairman of the Board, the President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301 and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of
any country other than the United States.
"Global Exchange Agent" has the meaning specified in
Section 304.
"Global Exchange Date" has the meaning specified in
Section 304.
"Global Security" means a Security that evidences all or part of
the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
"Holder" means, in the case of any Registered Security, a Person
in whose name a Security is registered in the Security Register and, in the case
of any Bearer Security, the bearer thereof and, when used with respect to any
coupon, the bearer thereof.
"Home Savings" means Home Savings of America, FSB and its
successors (whether by consolidation, merger, conversion, transfer of
substantially all their assets and business or 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
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<PAGE> 14
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;
(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
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<PAGE> 15
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1402; and
(4) Securities that have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof to such date pursuant to Section 502, (B) the principal amount
of a Security denominated in one or more foreign currencies or currency units
shall be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 301 on the date of original issuance of such Security,
of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in Clause (A) above) of such
Security, and (C) Securities owned by the Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
that the Trustee knows to be so owned shall be so disregarded. Securities so
owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Subsidiary of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Periodic Offering" means an offering of Securities of a series
from time to time the specific terms of which
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<PAGE> 16
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 Officers' 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 Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any
8
<PAGE> 17
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if
any) and interest on (a) all indebtedness of the Company (including indebtedness
of others guaranteed by the Company) other than the Securities and the
Company's 9.875% Subordinated Notes due 1999 and 7.875% Subordinated Notes due
September 1, 2004, which is (i) for money borrowed or (ii) evidenced by a note
or similar instrument given in connection with the acquisition of any
businesses, properties or assets of any kind, (b) obligations of the Issuer as
lessee under leases required to be capitalized on the balance sheet of the
lessee under generally accepted accounting principles and leases of property
or assets made a part of any sale and lease-back transaction to which the
Company is a party and (c) amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligation, unless in any case in the
instrument creating or evidencing any such indebtedness or obligation or
pursuant to which the same is outstanding it is provided that such
indebtedness or obligation is not superior in right of payment to the
Securities, in each case whether such indebtedness or obligation is
outstanding on the date of this Indenture or thereafter created, incurred or
assumed.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock that ordinarily has voting power for the election of directors,
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<PAGE> 18
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
["Trading Day" means, with respect to the Common Stock, each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on the exchange or market on which the Common Stock
is traded.]
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean each Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990 and as in force at the date
as of which this instrument was executed; provided, however, that in the event
the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"United States" means the United States of America, its
territories, its possessions (including the Commonwealth of Puerto Rico), and
other areas subject to its jurisdiction.
"United States Alien" means any person who, for United States
Federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, for United States Federal income
tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
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
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<PAGE> 19
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless 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
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<PAGE> 20
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If Securities of a series are issuable in whole or
in part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities duly
called and held in accordance with the provisions of Article Fifteen, or a
combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments 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 ownership of Registered Securities shall be proved by the Security
Register.
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<PAGE> 21
The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
Depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that as of the date therein mentioned such Person had on
deposit with such Depositary, or exhibited to it, the Bearer Securities in the
amount and with the serial numbers therein described, or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee of the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to the Trustee by some other Person, (3) such
Bearer Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding.
The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner that the Trustee deems sufficient, and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section 104.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
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
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<PAGE> 22
to any record date set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to give or take the relevant
action, whether or not such Holders remain Holders after such record date.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of whom may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust 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
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the Securities on at least two Business Days, the first such publication to be
not earlier than the earliest date, and not later than the latest date,
prescribed for the giving of such notice. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impractical to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided, nor any defect in any
notice so published, shall affect the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
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.
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Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (including any Paying Agent or Authenticating Agent
appointed pursuant to Section 614), other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the law of the State of _________________, 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.
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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 or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Securities 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, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 or 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
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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:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
As Trustee
By
-------------------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article
Fourteen.
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,
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are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, and the manner in which, and the person to whom, any
interest on any Bearer Securities of the series shall be payable, if
otherwise then upon presentation and surrender of the coupons
appertaining thereto as they severally mature.
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of 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;
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(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable, if other than Dollars, and
the Exchange Rate and Exchange Rate Agent;
(11) if the amount of payments of principal of or any
premium or interest on any Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined and any special voting or defeasance provisions in
connection thereto;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to
be payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on
Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions
upon which such election is to be made;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(14) if applicable, that the Securities of the series shall
be 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
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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;
(18) the applicability or non-applicability of Section 1008,
or any variations in Section 1008, or the applicability of any
additional restrictive covenants;
(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
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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.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Fourteen. [The Securities shall not be
superior in right of payment to, and shall rank pari passu with, the Company's
__% Subordinated Notes due ____].
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
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<PAGE> 31
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 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 as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(1) if the forms of such Securities and any coupons has
been established by or pursuant to Board Resolution as permitted by
Section 201, that such form has been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have
been established by or pursuant to Board Resolution as permitted by
Section 301, that such terms have been established in conformity with
the provisions of this Indenture; and
(3) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
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<PAGE> 32
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:
(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
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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 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.
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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 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
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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 certificate specified as contemplated by Sections 301 and 311.
Unless otherwise specified in such temporary Global Security, any such exchange
shall be made free of charge to the beneficial owners of such temporary Global
Security, except that a person receiving permanent Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
person does not take delivery of such permanent Securities in person at the
offices of Euro-clear or Cedel S.A.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as permanent Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
Global Security representing a series of Bearer Securities on an Interest
Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euro-clear and Cedel S.A. on such Interest
Payment Date, upon delivery by Euro-clear and Cedel S.A. to the Trustee of any
certificate specified as contemplated by Section 301, for credit without
further interest on or after such Interest Payment Date to the respective
accounts of the persons who are the beneficial owners of such temporary Global
Security on such Interest Payment Date and who have each delivered to
Euro-clear or Cedel S.A., as the case may be, any certificate specified as
contemplated by Sections 301 and 311.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of to
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
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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 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 publication, as applicable, of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, (2) to register the
transfer or exchange of any Security so selected for
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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 Bearer Security may be exchanged for a Registered
Security of like tenor and terms of that series, provided that such Registered
Security shall be simultaneously surrendered for exemption.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denomination or denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by a
payment in funds acceptable to the Company and the Trustee in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and Trustee if there is
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that except as otherwise
provided in this Indenture, interest represented by coupons shall be payable
only upon presentation and surrender of such coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date or proposed date for payment, as
the case may be, and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee
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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 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.
The Company may at any time and in its sole discretion determine that
the Debt Securities issued in the form of one or more Global Securities shall
no longer be represented by a Global Security. In such event the Company shall
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive securities, shall authenticate and
deliver, Debt Securities in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security, in exchange for such Global Security.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant
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to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be
authenticated, registered and delivered in the form of, and shall be, a Global
Security.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange. Neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the
United States Federal income tax laws and regulations then in effect and the
Company has delivered to the Trustee a Company Order directing the Trustee not
to make such exchanges thereafter, unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities or Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security (and mutilated
coupon, if applicable), a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon;
provided, however, that the interest on any Bearer Security shall be payable
only at an office or agency located outside the United States and only upon
presentation and surrender of the coupons appertaining thereto (unless
otherwise specified as contemplated by Section 301).
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient
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to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of counsel and
the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security, or in exchange for a
Security to which a mutilated, destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Registered Security that
is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business on the next succeeding Interest Payment Date,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date and interest will not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Any interest on any Registered Security of any series that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
that shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at
his or her address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice is given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of 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.
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Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment of
principal of and any premium and (except as contemplated by Section 301(3) and
subject to Section 307) any interest on such Registered Security and for all
other purposes whatsoever, whether or not such Security is overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of
any coupon as the absolute owner of such Bearer Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be effected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
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
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and delivered hereunder that the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder that the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by
a Company Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. Certificate by a Person Entitled to Delivery of a Bearer
Security.
Whenever any provision of this Indenture contemplates that a Person
shall be entitled to delivery of a Bearer Security, no delivery of such Bearer
Security shall be made unless and until the Company shall have received
certification substantially in the form of Exhibit A-1 and, if applicable,
Exhibit A-2 and Exhibit B hereto, with only such changes as shall be approved
by the Company then consented to by the Trustee whose consent shall not be
unreasonably withheld, and any additional certification as 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
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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 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.
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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 occasioned by the provisions of
Article Fourteen or voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of a series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and
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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 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
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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.
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
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(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.
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.
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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 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
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judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and any coupons in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: Subject to Article Fourteen, to the payment of the amounts then
due and unpaid for principal of and any premium and interest on the
Securities and interest evidenced by coupons in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities and coupons first for any premium and interest, and second, for
any principal, respectively.
[The Holders of each series of Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount determined
by the Exchange Rate Agent by converting the principal amount Outstanding of
such series of Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is denominated
into Dollars at the Exchange Rate as of the date of declaration of acceleration
of Maturity of the Securities.]
Section 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(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;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request in such amount as shall be reasonably
acceptable to the Trustee;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
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
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the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
or coupons to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding 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
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related coupons, waive any past default hereunder with respect to such series
and its consequences, except a default
(1) in the payment of the principal of or any premium or interest
on any Security of such series, or
(2) in respect of a covenant or provision hereof that under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, however, that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Trustee
or the Company.
Section 515. Waiver of Usury, Stay or Extension Laws.
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.
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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.
(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
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exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series.
No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any personal financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 602. Notice of Defaults.
The Trustee shall give notice of any default known to the Trustee with
respect to the Securities of any series when, as and to the extent provided by
the Trust Indenture Act and in the manner provided by Section 106 hereof;
provided, however, that in the case of any default of the character specified
in Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the default is known to the
Trustee. For the purpose of this Section, the term "default" means any event
that is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(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;
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(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney upon reasonable advance written notice
and during regular business hours; and
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604. Not Responsible for Recitals or Issuance of
Securities.
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,
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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
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or performance of its
duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Company under this Section shall not be
subordinated to the payment of Senior Indebtedness pursuant to Article
Fourteen. 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.
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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.
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
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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 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,
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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 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
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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.
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
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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
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.
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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.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
---------------------------------------
, As Trustee
By:
-------------------------------
As Authenticating Agent
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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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Registered Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Registered Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Registered Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished.
The rights of the Registered Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as
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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 199_.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) that the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days
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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;
(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
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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.
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
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series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to provide that Bearer Securities may
be registrable as to principal, to change or eliminate any restrictions
(including restrictions relating to payment in the United States) on the
payment of principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations, or to permit or facilitate the issuance
of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security
Outstanding; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 611; or
(8) to cure any ambiguity, to correct or supplement any provision
herein that may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Indenture; provided, however, that such action pursuant to this clause (8)
shall not adversely affect the interests of the Holders of Securities of any
series (except a series consenting pursuant to Section 902) in any material
respect.
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Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502,
or change the coin or currency in which any Security or any premium or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment or delivery on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or
modify the provisions of this Indenture with respect to the subordination of
the Securities in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to the
"Trustee" and concomitant changes in this Section and Section 1009, or the
deletion of
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this proviso, in accordance with the requirements of Sections 611 and
901(7).
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities, or that modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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
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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.
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Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer 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 ___________________________ [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
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exchange controls or other similar restrictions. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any coupons appertaining thereto, it will, prior to
each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security or coupon shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, the City of New York, New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of
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Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
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'
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qualifying shares) of which is at the time owned directly or indirectly by the
Company.
The Company shall not create, assume, incur or suffer to exist, as
security for indebtedness for borrowed money, any mortgage, pledge,
encumbrance, lien or charge of any kind upon the Voting Stock of Home Savings
(other than directors' qualifying shares) without effectively providing that
the Securities shall be secured equally and ratably with (or prior to) such
indebtedness; provided, however, that the Company may create, assume, incur or
suffer to exist any such mortgage, pledge, encumbrance, lien or charge without
regard to the foregoing provisions so long as after giving effect thereto the
Company will own directly or indirectly at least 80% of the Voting Stock of
Home Savings then issued and outstanding, free and clear of any such mortgage,
pledge, encumbrance, lien or charge. For the purposes of this Section 1008,
the term "Voting Stock" of any Person shall mean stock of any class or classes,
however designated, having ordinary voting power for the election of a majority
of the board of directors of such Person, other than stock having such power
only by reason of the happening of a contingency.
Notwithstanding the foregoing, the Company may avoid the restrictions
described in the previous two paragraphs if prior to any such transaction Home
Savings shall have unconditionally guaranteed payment when due of the principal
or premium, if any, and interest on the Securities, Home Savings shall have
obtained all regulatory approvals, if any, required to permit the guarantee of
the Securities, and the Company shall have delivered to the Trustee an Opinion
of Counsel stating that the guarantee of the Securities by Home Savings has
been duly authorized, executed and delivered and constitutes a valid, legally
binding and enforceable obligation of Home Savings.
Section 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1001 to 1003 and 1005 to
1008, inclusive, with respect to the Securities of any series if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to
be redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and that may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities that has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his or her address
appearing in the Security Register, but 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
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(7) the CUSIP numbers of the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities that
are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except as
otherwise provided herein, shall be void. Upon surrender of any such Security
for redemption in accordance with said notice, together will all coupons, if
any, appertaining thereto maturing after the Redemption Date such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all pertinent coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or
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coupons may be waived by the Company and the Trustee if there may be furnished
to them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security that is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his or her attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities
of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund
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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 60 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 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
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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, and the provisions of Article Fourteen shall cease to be effective
with respect to the Outstanding Securities of such series as provided in this
Section on and after the date the conditions set forth in Section 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.
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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, (2) the occurrence of any event specified in
Sections 501(4) (with respect to any of Sections 1005 through 1008, inclusive),
501(5) and 501(8) shall be deemed not to be or result in an Event of Default
and (3) the provisions of Article Fourteen shall cease to be effective, in each
case with respect to the Outstanding Securities of such series as provided in
this Section on and after the date the conditions set forth in Section 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)) or Article Fourteen, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities of
such series shall be unaffected thereby.
Section 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
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on the Securities of such series on the respective Stated Maturities, in
accordance with the terms of this Indenture and the Securities of such
series. As used herein, "U.S. Government Obligation" means (x) any security
that is (i) a direct obligation of the United States of America for the
payment of which the full faith and credit of the United States of America
is pledged or (ii) an obligation of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and
(y) any depositary receipt issued by a bank (as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended) as custodian with respect to any
U.S. Government Obligation specified in Clause (x) and held by such
custodian for the 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
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same times as would be the case if such deposit and Covenant Defeasance
were not to occur.
(4) The Company shall have delivered to the Trustee an 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.
(10) At the time of such deposit, (A) no default in the payment of
any principal of or premium or interest on any Senior Indebtedness shall
have occurred and be continuing, (B) no event of default with respect to any
Senior Indebtedness shall have resulted in such Senior Indebtedness
becoming, and continuing to be, due and payable prior to the date on which
it would otherwise have become due and payable (unless payment of such
Senior Indebtedness has been made or duly provided for), and (C) no other
event of default with respect to any Senior Indebtedness shall have occurred
and be continuing permitting (after notice or lapse of time or both) the
holders of such Senior Indebtedness (or a trustee on behalf of such holders)
to declare such Senior
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Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable.
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 series, of all sums
due and to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other funds
except to the extent required by law. Money and U.S. Government obligations so
held in trust shall not be subject to the provisions of Article Fourteen.
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.
The provisions for subordination of the Securities set forth in Article
Fourteen are hereby expressly made subject to the provisions for defeasance or
covenant defeasance in this Article Thirteen and, anything herein to the
contrary notwithstanding, upon the effectiveness of such defeasance or covenant
defeasance with respect to the Outstanding Securities, such Securities shall
thereupon cease to be so subordinated.
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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
SUBORDINATION OF SECURITIES
Section 1401. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by
his or her acceptance thereof, likewise, covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the
indebtedness represented by the Securities and the payment of the principal of
and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness. The provisions of this Article Fourteen are subject to
the final paragraph of Section 1305.
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company, then and in any such event the holders of Senior Indebtedness shall be
entitled to receive payment in full of all amounts due or to become due on or
in
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respect of all Senior Indebtedness before the Holders of the Securities and any
coupons appurtenant thereto are entitled to receive any payment on account of
principal of or interest on the Securities, and to that end the holders of
Senior Indebtedness shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, property or securities, including any such payment or distribution
that may be payable or deliverable by reason of the payment of any other
indebtedness of the Company being subordinated to the payment of the
Securities, which may be payable or deliverable in respect of the Securities in
any such case, proceeding, dissolution, liquidation or other winding up or
event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution that may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities, before all Senior Indebtedness is paid in full, and if such fact
shall, at or prior to the time of such payment or distribution, have been made
known to the Trustee or, as the case may be, such Holder, then and in such
event such payment or distribution shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full, after giving
effect to any concurrent payment or distribution to or for the Holders of
Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or readjustment that are
subordinated in right of payment to all Senior Indebtedness that may at the
time be outstanding to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the
conveyance or transfer of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of the Company for the purposes of this Section if the
Person formed by such consolidation or into which the Company is merged or the
Person
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that acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight.
Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior
Indebtedness shall be entitled to receive payment in full of all amounts due on
or in respect of all Senior Indebtedness before the Holders of the Securities
are entitled to receive any payment (including any payment that may be payable
by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) by the Company on account of the
principal of or interest on the Securities or on account of the purchase or
other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to
the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1402 would be applicable.
Section 1404. No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or in the
event that any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing permitting the holders of such Senior
Indebtedness (or a trustee on behalf of the holders thereof) to declare such
Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable, and unless and until such event of
default shall have been cured or waived or shall have ceased to exist, or (b)
in the event any judicial proceeding shall be pending with respect to any such
default in payment or event of default, then no payment (including any payment
that may be payable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities) shall be made by
the Company on account of principal of or interest on the
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Securities and any coupon appurtenant thereto or on account of the purchase or
other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security or coupon
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment shall
be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1402 would be applicable.
Section 1405. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1402 or under the conditions
described in Section 1403 or 1404, from making payments at any time of
principal of or interest on the Securities, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on
account of the principal of or interest on the Securities or the retention of
such payment by the Holders, if, at the time of such application by the
Trustee, it did not have knowledge as provided in Section 1410 that such
payment would have been prohibited by the provisions of this Article.
Section 1406. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities and any coupons appurtenant thereto shall be subrogated
(equally and ratably with the holders of all indebtedness of the Company that
by its express terms is subordinated to indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is
entitled to like rights of subrogation) to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of and
interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
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shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
Section 1407. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior Indebtedness,
is intended to the fullest extent permitted by law to rank equally with all
other general obligations of the Company), to pay to the Holders of the
Securities the principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders of Senior
Indebtedness to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 1408. Trustee to Effectuate Subordination.
Each holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
Section 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
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<PAGE> 92
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of Senior Indebtedness; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 1410. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company that would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor, and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 1510 at least three Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of or interest on any Security), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary that may
be received by it during or after such three Business Day period.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself or herself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in
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<PAGE> 93
good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Section 1411. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article.
Section 1412. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or coupons or to the Company or to any other Person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.
Section 1413. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness that
may at any time be held by it, to
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<PAGE> 94
the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
Section 1414. Article Applicable to Payment Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1413 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1502. 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 1501, 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
86
<PAGE> 95
Securities of such series for any purpose specified in Section 1501, 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 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. 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 1502(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
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<PAGE> 96
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 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
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 1502(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.
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<PAGE> 97
(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 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting and the
meeting may be held as 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.
-----------------------
89
<PAGE> 98
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:
- ------------------------
[TRUSTEE]
By:
---------------------
Attest:
- ------------------------
90
<PAGE> 99
EXHIBIT A-1
[FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP BY A
NON-UNITED STATES PERSON OR BY CERTAIN OTHER PERSONS]
CERTIFICATE
H. F. AHMANSON & COMPANY
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF
SECURITIES TO BE DELIVERED]
Reference is hereby made to the Indenture dated as of
(the "Indenture") between H. F. Ahmanson & Company, a Delaware corporation, and,
as trustee (the "Trustee") covering the above-captioned Securities. This is to
certify that as of the date hereof, ________________ principal amount of
Securities credited to you for our account (i) is owned by persons that are not
United States Persons, as defined below; (ii) is owned by United States Persons
that are (a) foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(i)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States Persons who acquired the Notes through foreign branches of United States
financial institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution encloses herewith a certificate in the
form of Exhibit A-2 to the Indenture); or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section
1.153-5(c)(2)(i)(D)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Notes for purposes of resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions.
[Insert if certificate does not relate to an interest payment -
We undertake to advise you by tested telex followed by written confirmation if
the above statement as to beneficial ownership is not correct on the date of
delivery of the above-captioned Securities in bearer form as to all of such
Securities with respect to such of said Securities as then appear in your books
as being held for our account.] We understand that this certificate is required
in connection with United States tax laws. We irrevocably authorize you to
produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
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
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<PAGE> 100
or organized in or under the laws of the United States or any political
subdivision thereof or an estate or trust that is subject to United States
Federal income taxation regardless of the source of its income.
[This certificate excepts and does not relate to____________________
principal amount of Securities credited to you for our account and to which we
are not now able to make the certification set forth above. We understand that
definitive Securities cannot be delivered and interest cannot be paid until we
are able to so certify with respect to such principal amount of Securities.]*
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
92
<PAGE> 101
EXHIBIT A-2
[FORM OF CERTIFICATE OF STATUS AS A FOREIGN BRANCH OF A
UNITED STATES FINANCIAL INSTITUTION]
Certificate
H. F. AHMANSON & COMPANY
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF
SECURITIES TO BE DELIVERED]
Reference is hereby made to the Indenture dated as of _______________,
the ("Indenture"), between H. F. Ahmanson & Company and _____________________,
as Trustee, relating to the offering of the above-captioned Securities (the
"Securities"). Unless herein defined, terms used herein have the same meaning
as given to them in the Indenture.
The undersigned represents that it is a branch located outside the
United States of a United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or
the issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any
93
<PAGE> 102
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:
-------------------------
94
<PAGE> 103
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
ALL OR A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PRIOR TO EXCHANGE]
Certificate
H. F. AHMANSON & COMPANY
[INSERT TITLE OF SECURITIES TO BE DELIVERED]
We refer to that portion, _____________, of the Global Security
representing the above-captioned issue [which is herewith submitted to be
exchanged for definitive Securities] [for which we are seeking to obtain
payment of interest] (the "Submitted Portion"). This is to certify, pursuant
to the Indenture dated ____________ (the "Indenture") between H. F. Ahmanson &
Company and ______________________, as Trustee (the "Trustee), that we have
received in writing, by tested telex or by electronic transmission from member
organizations with respect to each of the persons appearing in our records as
being entitled to a beneficial interest in the Submitted Portion a Certificate
of Beneficial Ownership by a Non-United States Person or by Certain Other
Person, [and, in some cases, a Certificate of Status as a Foreign Branch of a
United States Financial Institution, authorizing us to inform the issuer or
issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder] substantially in the form of Exhibit A-1 [and A-2] to
the Indenture.
We hereby request that you deliver to the office of ________________ in
_________________ definitive Bearer Securities in the denominations on the
attached Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect
that the statements made by them with
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<PAGE> 104
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:
--------------------------
96
<PAGE> 1
EXHIBIT 5.1
January 23, 1995
(310) 552-8500
C 00053-00965
H. F. Ahmanson & Company
4900 Rivergrade Road
Irwindale, California 91706
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we have examined the Registration Statement
on Form S-3 (the "Registration Statement") relating to the registration and
sale from time to time by you of up to an aggregate of $500,000,000 of
unsecured senior and subordinated debt securities (the "Securities"). We have
examined the proceedings heretofore taken and are familiar with the procedures
proposed to be taken by you in connection with the authorization, issuance and
sale of the Securities. Capitalized terms used but not otherwise defined
herein shall have the same meanings ascribed to them in the Registration
Statement.
Subject to (i) the proposed additional proceedings being taken
as now contemplated by us as your counsel prior to the issuance of any of the
Securities, (ii) the terms of the Securities being otherwise in compliance with
then applicable law, (iii) the effectiveness of the Registration Statement
under the Securities Act of 1933, as amended, (iv) the due authorization,
execution and delivery of the Indenture pursuant to which the Securities are to
be issued, (v) the due execution, authentication, registration and delivery of
the certificate or certificates evidencing the Securities, (vi) the appropriate
officers and/or directors having taken all necessary action to approve the
specific terms of the Securities to be issued, we are of the opinion that the
Securities to be issued by you will
<PAGE> 2
H. F. Ahmanson & Company
January 23, 1995
Page 2
be, when issued and paid for in the manner specified by the Registration
Statement and the exhibits thereto, validly issued and binding obligations upon
you, subject to the effect of (a) applicable bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization or similar laws and court decisions
affecting creditors' rights and remedies generally and (b) the application of
general principles of equity (whether such enforceability is considered in a
proceeding in equity or at law).
You have informed us that you intend to issue the Securities
from time to time on a delayed or continuous basis, and this opinion is limited
to the laws, including the rules and regulations, as in effect on the date
hereof. We understand that prior to issuing any Securities you will advise us
in writing of the terms thereof, will afford us an opportunity to review the
operative documents pursuant to which such Securities are to be issued
(including the applicable Prospectus Supplement) and will file such supplement
or amendment to this opinion (if any) as we may reasonably consider necessary
or appropriate by reason of the terms of such Securities.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement, and we further consent to the use of our name under
the caption "Legal Matters" in the Registration Statement and in the Prospectus
and the form of Prospectus Supplement.
Very truly yours,
GIBSON, DUNN & CRUTCHER
<PAGE> 1
EXHIBIT 12.1
H. F. AHMANSON & COMPANY AND SUBSIDIARIES
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
----------------------- ------------------------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
---------- ---------- ---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings from
continuing operations
(including extraordinary
items) before income taxes $ 325,756 $ (297,918) $ (257,973) $ 289,614 $ 473,003 $ 298,486 $ 369,369
Interest on borrowings 355,770 275,120 365,287 332,066 664,995 798,639 859,841
One-third of rents 18,164 20,181 26,525 26,917 26,550 19,360 16,592
Less capitalized interest - - - - (28,763) (64,765) (59,695)
---------- ---------- ---------- ---------- ---------- ---------- ----------
699,690 (2,617) 133,839 648,597 1,135,785 1,051,720 1,186,107
Interest on deposits 902,803 991,524 1,301,063 1,738,347 2,478,290 2,723,102 2,466,090
---------- ---------- ---------- ---------- ---------- ---------- ----------
$1,602,493 $ 988,907 $1,434,902 $2,386,944 $3,614,075 $3,774,822 $3,652,197
========== ========== ========== ========== ========== ========== ==========
Fixed Charges:
Interest on borrowings $ 355,770 $ 275,120 $ 365,287 $ 332,066 $ 644,995 $ 798,639 $ 859,841
One-third of rents 18,164 20,181 26,525 26,917 26,550 19,360 16,592
---------- ---------- ---------- ---------- ---------- ---------- ----------
373,934 295,301 391,812 358,983 691,545 817,999 876,433
Interest on deposits 902,803 991,524 1,301,063 1,738,347 2,478,290 2,723,102 2,466,090
---------- ---------- ---------- ---------- ---------- ---------- ----------
$1,276,737 $1,286,825 $1,692,875 $2,097,330 $3,169,835 $3,541,101 $3,342,523
========== ========== ========== ========== ========== ========== ==========
Ratios of earnings to
fixed charges:
Excluding interest on
customer accounts 1.87 - (1) - (1) 1.81 1.64 1.29 1.35
Including interest on
deposits 1.26 - (1) - (1) 1.14 1.14 1.07 1.09
</TABLE>
(1) For the nine months ended September 30, 1993 and year ended December 31,
1993, fixed charges exceeded earnings by $297.9 million and $258.0
million, respectively.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
H.F. Ahmanson & Company:
We consent to the use of our report dated January 25, 1994, on the consolidated
statements of financial conditon of H.F. Ahmanson & Company at December 31,
1993 and 1992, and the related consolidated statements of operations,
stockholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1993, incorporated by reference herein, and to the
reference to our Firm under the heading "Experts" in the registration
statement.
KPMG Peat Marwick LLP
Los Angeles, California
January 23, 1995
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Charles R. Rinehart, Fredric J. Forster,
Kevin M. Twomey and Tim S. Glassett, and each of them, as true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities to sign the Registration Statement on Form S-3 of H.F.
Ahmanson & Company pertaining to the Company's Debt Securities and to which
this Power of Attorney is an Exhibit and any or all amendments (including
post-effective amendments) to the Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
foregoing, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
Signature Capacity Date
--------- -------- ----
- ----------------------------- Director
Robert H. Ahmanson
- ----------------------------- Director
William H. Ahmanson
- ----------------------------- Director
Byron Allumbaugh
/s/ Richard M. Bressler
- ----------------------------- Director January 20, 1995
Richard M. Bressler
/s/ Lodwrick M. Cook
- ----------------------------- Director January 20, 1995
Lodwrick M. Cook
- ----------------------------- Director
Richard H. Deihl
/s/ Robert M. De Kruif
- ----------------------------- Director January 12, 1995
Robert M. De Kruif
<PAGE> 2
- ----------------------------- Director
David S. Hannah
/s/ Delia M. Reyes
- ----------------------------- Director January 20, 1995
Delia M. Reyes
/s/ Charles R. Rinehart
- ----------------------------- Director and January 20, 1995
Charles R. Rinehart Chief Executive Officer
(Principal Executive Officer)
/s/ Elizabeth Sanders
- ----------------------------- Director January 20, 1995
Elizabeth Sanders
/s/ Arthur W. Schmutz
- ----------------------------- Director January 20, 1995
Arthur W. Schmutz
/s/ William D. Schulte
- ----------------------------- Director January 20, 1995
William D. Schulte
/s/ Kevin M. Twomey
- ----------------------------- Executive Vice President and January 20, 1995
Kevin M. Twomey Chief Financial Officer
(Principal Financial Officer)
/s/ George Miranda
- ----------------------------- First Vice President January 20, 1995
George Miranda (Principal Accounting Officer)
-2-
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
_________________________________
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
_________________________________
H. F. AHMANSON & COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-0479700
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
4900 RIVERGRADE ROAD
IRWINDALE, CALIFORNIA 91706
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, The First National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago and State
of Illinois, on the 3rd day of January, 1995.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE,
BY: /s/ R. D. MANELLA
---------------------------------
R. D. MANELLA
VICE PRESIDENT AND SENIOR COUNSEL
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 12 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 26(b) to the Registration Statement on
Form S-3 of Dow Capital B.V. and The Dow Chemical Company, filed with the
Securities and Exchange Commission on June 3, 1991 (Registration No. 33-36314).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED BY
SECTION 321(b) OF THE ACT
January 3, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between H. F. Ahmanson &
Company and The First National Bank of Chicago, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal
or State authorities authorized to make such examinations, may be furnished by
such authorities to the Securities and Exchange Commission upon its request
therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ R. D. MANELLA
---------------------------------
R.D. MANELLA
VICE PRESIDENT AND SENIOR COUNSEL
4
<PAGE> 5
EXHIBIT 7
A copy of the latest report of conditions of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
5
<PAGE> 6
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 9/30/94 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400
THOUSANDS RCFD BIL MIL THOU <-
------------------- ---- ------------ ----
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . . . 0081 3,677,034 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . . . 0071 7,396,406 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 169,280 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) . . . . 1773 533,138 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . . . 0276 3,758,277 3.a.
b. Securities purchased under agreements to resell . . . . . . . . . . 0277 983,109 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 14,933,756 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . . . RCFD 3123 355,626 4.b.
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . . 2125 14,578,130 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . 3545 9,793,010 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . . 2145 506,298 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . . 2150 48,699 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . 2130 7,269 8.
9. Customers' liability to this bank on acceptances outstanding . . . . . 2155 583,073 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . . 2143 122,763 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . 2160 1,217,250 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . . 2170 43,373,736 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
6
<PAGE> 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 930/94 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . RCON 2200 14,587,998 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . . RCON 6631 5,788,459 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . RCON 6636 8,799,539 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . . RCFN 2200 9,974,515 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . . RCFN 6631 850,522 13.b.(1)
(2) Interest-bearing RCFN 6636 9,123,993 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . . RCFD 0278 2,211,005 14.a.
b. Securities sold under agreements to repurchase . . . . . . RCFD 0279 765,393 14.b.
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . RCON 2840 102,201 15.a.
b. Trading Liabilities . . . . . . . . . . . . . . . . . . . RCFD 3548 6,291,743 15.b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . . RCFD 2332 3,237,167 16.a.
b. With original maturity of more than one year . . . . . . RCFD 2333 491,176 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 275,794 17.
18. Bank's liability on acceptance executed and outstanding RCFD 2920 583,073 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . RCFD 3200 1,325,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . RCFD 2930 638,753 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . RCFD 2948 40,483,818 21.
22. Limited-Life preferred stock and related surplus . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,289,398 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . RCFD 3632 403,835 26.a.
b. Net unrealized holding gains (losses) on available-for-
sale securities . . . . . . . . . . . . . . . . . . . . . RCFD 8434 (3,441) 26.b.
27. Cumulative foreign currency translation adjustments . . . . . RCFD 3284 (732) 27.
28. Total equity capital (sum of items 23 through 27) RCFD 3210 2,889,918 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . . RCFD 3300 43,373,736 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the
bank by independent external Number
--------------
auditors as of any date during 1993 . . . . . . RCFD 6724 N/A M.1.
--------------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
7
