<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 20, 1994
REGISTRATION NO. 33-54627
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
FIRSTFED FINANCIAL CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C>
DELAWARE 95-4087449
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
401 WILSHIRE BOULEVARD
SANTA MONICA, CALIFORNIA 90401
(310) 319-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
------------------------
ANN E. LEDERER
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
FIRSTFED FINANCIAL CORP.
401 WILSHIRE BOULEVARD
SANTA MONICA, CALIFORNIA 90401
(310) 319-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES OF COMMUNICATIONS TO:
<TABLE>
<S> <C>
DAVID K. ROBBINS STANLEY F. FARRAR
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON SULLIVAN & CROMWELL
725 SOUTH FIGUEROA STREET, SUITE 3890 444 SOUTH FLOWER STREET
LOS ANGELES, CALIFORNIA 90017 LOS ANGELES, CALIFORNIA 90071
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
As soon as practicable after the Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
------------------------
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
EXPLANATORY NOTE
The only change in this Amendment No. 3 to the Registration Statement
(Registration No. 33-54627) is an amended Exhibit 4 to the Registration
Statement. The Prospectus in Amendment No. 3 is exactly the same as the
Prospectus in Amendment No. 2, and therefore, is not being refiled herewith.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
securities to be registered, other than underwriting discounts and commissions,
are as follows:
<TABLE>
<S> <C>
Registration Fee............................................... $ 17,241
Blue Sky Fees and Expenses..................................... 22,500
Printing and Engraving Expenses................................ 15,000
Legal Fees and Expenses........................................ 225,000
Accounting Fees and Expenses................................... 120,000
Indenture Trustee's Fees....................................... 10,500
Consultant Fees................................................ 250,500
NASD Filing Fees............................................... 5,500
Depository Fees................................................ 2,000
Rating Agency Fees............................................. 40,000
Miscellaneous.................................................. 16,759
--------
Total........................................................ $725,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Set forth below is a description of certain provisions of the Certificate
of Incorporation (the "Certificate") of FFC and the General Corporation Law of
the State of Delaware (the "DGCL") as it relates to the indemnification of the
directors and officers of FFC. This description is intended only as a summary
and is qualified in its entirety by reference to the Certificate and the DGCL.
Elimination of Liability in Certain Circumstances
The Certificate provides that to the fullest extent provided by law a
director will not be personally liable for monetary damages to FFC or its
stockholders for or with respect to any acts or omissions in the performance of
his or her duties as a director, except for liability (i) for any breach of the
director's duty of loyalty to such corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for paying a dividend or approving a stock
repurchase in violation of Section 174 of the DGCL or (iv) for any transaction
from which the director derived an improper personal benefit.
While Article Eleventh of the Certificate provides directors with
protection from awards for monetary damages for breaches of the duty of care, it
does not eliminate the directors' duty of care. Accordingly, Article Eleventh
will have no effect on the availability of equitable remedies such as an
injunction or rescission based on a director's breach of the duty of care. The
provisions of Article Eleventh as described above apply to officers of FFC only
if they are directors of FFC and are acting in their capacity as directors, and
does not apply to officers of FFC who are not directors.
Indemnification and Insurance
Under the DGCL, directors and officers as well as other employees and
individuals may be indemnified against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation as a
derivative action) if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best
II-1
<PAGE> 4
interest of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful.
Article Twelfth of the Certificate provides to directors and officers
indemnification to the fullest extent provided by law, thereby affording the
directors and officers of FFC the protections available to directors and
officers of Delaware corporations. FFC has obtained directors and officers
liability insurance providing coverage to its directors and officers.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -------------------------------------------------------------------
<S> <C>
1* Proposed form of Underwriting Agreement
3.1 Certificate of Incorporation of FFC (incorporated by reference to
Exhibit 10(a) to FFC's Registration Statement on Form 8-A dated
June 4, 1987)
3.2 By-Laws of FFC (incorporated by reference to Exhibit 3.2 to FFC's
Registration Statement on Form S-4 dated February 5, 1987)
4 Proposed form of Indenture
5* Opinion of Fried, Frank, Harris, Shriver & Jacobson (a partnership
including professional corporations), regarding the validity of the
Notes
12* Computation of Ratio of Earnings to Fixed Charges
21* Subsidiaries
23.1* Consent of KPMG Peat Marwick LLP
23.2* Consent of Fried, Frank, Harris, Shriver & Jacobson (a partnership
including professional corporations) (included in Exhibit 5)
24* Power of Attorney (included in page S-1)
25* Statement of Eligibility under the Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee on Form T-1
</TABLE>
- ---------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-2
<PAGE> 5
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement at the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 3 to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Santa Monica, State of California, on September 20, 1994.
FIRSTFED FINANCIAL CORP.
By: JAMES P. GIRALDIN
-------------------------------
Name: James P. Giraldin
Title: Executive Vice President,
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 has been signed by the following persons, in the capacities indicated, on
September 20, 1994.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<C> <S>
* Director, Chairman of the Board, and Chief
- ------------------------------------------ Executive Officer (principal executive
William S. Mortensen officer)
JAMES P. GIRALDIN Executive Vice President, Chief Financial
- ------------------------------------------ Officer (principal financial officer)
James P. Giraldin
* Senior Vice President, Controller (principal
- ------------------------------------------ accounting officer)
Michael R. Hilton
* Director
- ------------------------------------------
Samuel J. Crawford, Jr.
* Director
- ------------------------------------------
Christopher M. Harding
* Director, President and Chief Operating
- ------------------------------------------ Officer
Babette E. Heimbuch
* Director
- ------------------------------------------
James L. Hesburgh
* Director
- ------------------------------------------
June Lockhart
* Director
- ------------------------------------------
Charles F. Smith
* Director
- ------------------------------------------
Steven L. Soboroff
* Director
- ------------------------------------------
John R. Woodhull
*By: JAMES P. GIRALDIN
- ------------------------------------------
James P. Giraldin,
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE
- ----------- -------------------------------------------------------------------- ------------
<S> <C> <C>
1* Proposed form of Underwriting Agreement.............................
3.1 Certificate of Incorporation of FFC (incorporated by reference to
Exhibit 10(a) to FFC's Registration Statement on Form 8-A dated June
4, 1987)............................................................
3.2 By-Laws of FFC (incorporated by reference to Exhibit 3.2 to FFC's
Registration Statement on Form S-4 dated February 5, 1987)..........
4 Proposed form of Indenture..........................................
5* Opinion of Fried, Frank, Harris, Shriver & Jacobson (a partnership
including professional corporations), regarding the validity of the
Notes...............................................................
12* Computation of Ratio of Earnings to Fixed Charges...................
21* Subsidiaries........................................................
23.1* Consent of KPMG Peat Marwick LLP....................................
23.2* Consent of Fried, Frank, Harris, Shriver & Jacobson (a partnership
including professional corporations) (included in Exhibit 5)........
24* Power of Attorney (included in page S-1)............................
25* Statement of Eligibility under the Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee on Form T-1................
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
EXHIBIT 4
Draft of September 15, 1994
- --------------------------------------------------------------------------------
FIRSTFED FINANCIAL CORP.
TO
HARRIS TRUST COMPANY OF CALIFORNIA
Trustee
________________
Indenture
Dated as of ________, 1994
________________
$50,000,000
____% Notes due 2004
- --------------------------------------------------------------------------------
<PAGE> 2
FIRSTFED FINANCIAL CORP.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of ________, 1994
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
Section 310(a)(1) ............................... 609
(a)(2) ............................... 609
(a)(3) ............................... Not
Applicable
(a)(4) ............................... Not
Applicable
(b) ............................... 608
610
Section 311(a) ............................... 613
(b) ............................... 613
(b)(2) ............................... 703(a)
703(b)
Section 312(a) ............................... 701
702(a)
(b) ............................... 702(b)
(c) ............................... 702(c)
Section 313(a) ............................... 703(a)
(b) ............................... 703(a)
(c) ............................... 703(a)
(d) ............................... 703(b)
Section 314(a) ............................... 704
Section 314(a)(4) ............................... 1018
(b) ............................... Not
Applicable
(c)(1) ............................... 102
(c)(2) ............................... 102
(c)(3) ............................... Not
Applicable
(d) ............................... Not
Applicable
(e) ............................... 102
Section 315(a) ............................... 601(a)
(b) ............................... 602
(c) ............................... 601(b)
(d) ............................... 601(c)
(d)(1) ............................... 601(a)(1)
............................... 601(c)(1)
(d)(2) ............................... 601(c)(2)
(d)(3) ............................... 601(c)(3)
(e) ............................... 514
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
Section 316(a) ............................... 101
(a)(1)(A) ............................... 502
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
</TABLE>
______________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
-ii-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
</TABLE>
ARTICLE ONE
Definitions and Other Provisions
of General Application
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bank Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bank Subordinated Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Lease Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Consolidated Adjusted Net Income . . . . . . . . . . . . . . . . . . . . . . . 4
Consolidated Adjusted Net Worth . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
FDIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Incur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Insured Depository Institution . . . . . . . . . . . . . . . . . . . . . . . . 7
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
___________
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Net Available Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Offer to Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
OTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Permitted Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Permitted Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Purchase Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Purchase Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Redeemable Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Regulatory Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Related Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Subordinated Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 18
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . 20
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . 21
SECTION 104. Acts of Holders; Record Date . . . . . . . . . . . . . . . . . . . . 21
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . 23
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 107. Application of Trust Indenture Act . . . . . . . . . . . . . . . . . 24
</TABLE>
-ii-
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . 24
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 114. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . 28
SECTION 204. Form of Trustee's Certificate of Authentication . . . . . . . . . . . 31
ARTICLE THREE
The Securities
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . 33
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . 34
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . 37
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . 38
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . 40
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . 42
</TABLE>
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ARTICLE FIVE
Remedies
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SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . 46
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . . 48
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . . 50
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . 56
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 612. Merger, Conversion, Consolidation or Succession to Business. . . . . . . . . . . . . . . . . .. 60
</TABLE>
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . .
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . 60
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . 61
SECTION 702. Preservation of Information; Communications to Holders . . . . . . 61
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, etc. Only on Certain Terms . . . . . . . . 63
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . 64
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . 65
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . 66
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . 67
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . 67
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . 67
</TABLE>
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ARTICLE TEN
Covenants
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SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1003. Money for Security Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1007. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1008. Limitation on Company Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1009. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1010. Limitations Concerning Distributions By Subsidiaries, etc. . . . . . . . . . . . . . . . . . 75
SECTION 1011. Limitation on Dispositions of Certain Capital Stock and
Assets of Subsidiaries that are Insured Depository Institutions . . . . . . . . . . . . . . . 76
SECTION 1012. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1013. Limitation on Transactions with Affiliates and Related Persons . . . . . . . . . . . . . . . 79
SECTION 1014. Maintenance of Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1015. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1016. Notice Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1017. Provision of Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1018. Statement by Officers as to Default; Compliance Certificates . . . . . . . . . . . . . . . . 82
SECTION 1019. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1102. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1103. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1104. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1105. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1106. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1107. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1108. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
</TABLE>
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ARTICLE TWELVE
Defeasance and Covenant Defeasance
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SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . 87
SECTION 1202. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 1203. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 1204. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 1205. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 1206. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
</TABLE>
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<PAGE> 11
INDENTURE, dated as of ________, 1994, between FirstFed
Financial Corp., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 401 Wilshire Blvd., Santa Monica, CA 90401, Harris Trust Company
of California, a State trust company duly organized and existing under the
laws of the State of California, as Trustee (together with any successor as
Trustee hereunder, the "Trustee") and the Bank of Montreal Trust Company,
as Paying Agent.
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
$50,000,000 aggregate principal amount of its ____% Notes due 2004 (the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and 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 covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, 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 which are defined in the
Trust Indenture Act,
<PAGE> 12
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 (whether or not such is indicated
herein), and, except as 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 as consistently applied by the
Company at the date of such computation;
(4) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made
on a consolidated basis in accordance with generally accepted
accounting principles but shall not include the accounts of
unrestricted Subsidiaries, except to the extent of dividends and
distributions actually paid to the Company or one of its wholly owned
Subsidiaries; 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.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any 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.
"Bank" means First Federal Bank of California, a federally
chartered savings bank.
"Bank Subsidiary" means any Subsidiary of the Company that is
an Insured Depository Institution.
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<PAGE> 13
"Bank Subordinated Debt" means Debt of any Bank Subsidiary
which is permitted under Regulatory Requirements to be included in the capital
of the Bank for regulatory purposes.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"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" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the City of New
York, New York are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other Debt
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
generally accepted accounting principles. The stated maturity of such
obligation shall be the date of the last payment of rent or any other amount
due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of
corporate stock of such Person.
"Change of Control" has the meaning specified in Section 1015.
"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.
"Common Stock" of any Person means Capital Stock of such
Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding
-3-
<PAGE> 14
up of such Person, to shares of Capital Stock of any other class of such
Person.
"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.
"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
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Adjusted Net Income" of any Person means for any
period the net income (or loss) of such Person and its Subsidiaries for such
period determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by such Person or a Subsidiary of
such Person in a pooling-of-interests transaction for any period prior to the
date of such transaction, (b) the net income (but not net loss) of any
Subsidiary of such Person which is subject to restrictions which prevent the
payment of dividends or the making of distributions to such Person to the
extent of such restrictions, (c) the net income (or loss) of any Person that is
not a Subsidiary of such Person except to the extent of the amount of dividends
or other distributions actually paid to such Person by such other Person during
such period, (d) all extraordinary gains (other than tax credits to the extent
they result in cash benefits to the owner thereof) and extraordinary losses;
provided, further, that there shall be added thereto the aggregate amount of
dividends paid with respect to preferred stock of Subsidiaries of the Company
to the extent such amount was otherwise deducted in the foregoing calculation
of Consolidated Adjusted Net Income.
"Consolidated Adjusted Net Worth" of any Person means the
stockholders' equity of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with generally accepted accounting principles,
less amounts attributable to Redeemable Stock of such Person; provided that,
with respect to the Company, adjustments following the date of this Indenture
to the accounting books and records of the Company in accordance with
Accounting Principles Board Opinions Nos. 16 and 17 (or successor opinions
thereto) or otherwise for goodwill resulting from the application of pushdown
accounting from
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<PAGE> 15
the acquisition of control of the Company by another Person shall not be given
effect to.
"Corporate Trust Office" means the principal office of the
Trustee in the City of New York, New York at which at any particular time its
corporate trust business shall be administered.
"corporation" means a corporation, association, company,
joint-stock company, partnership or business trust.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations Incurred in
connection with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) all Capital Lease Obligations, (v) every obligation of such Person
issued or assumed as the deferred purchase price of property or services (but
excluding trade accounts payable or accrued liabilities arising in the ordinary
course of business), (vi) the maximum fixed redemption or repurchase price of
Redeemable Stock of such Person at the time of determination, (vii) every
payment obligation of such Person other than the Bank or any other Insured
Depositary Institution under interest rate swap or similar agreements or
foreign currency hedge, exchange or similar agreements at the time of
determination and (viii) every obligation of the type referred to in clauses
(i) through (vii) of another Person and all dividends of another Person the
payment of which, in either case, such Person has Guaranteed or is responsible
or liable for, directly or indirectly, as obligor, Guarantor or otherwise.
Notwithstanding the foregoing, Debt shall not include any obligations of the
Company with respect to any Wholly Owned Bank Subsidiary pursuant to any
Regulatory Requirement.
"Depositary" means, the Person designated to act as Depositary
by the Company in accordance with Section 303 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter Depositary shall mean or include each Person who is then a
Depositary hereunder.
"Event of Default" has the meaning specified in Section 501.
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<PAGE> 16
"Exchange Act" refers to the Securities Exchange Act of 1934,
as it may be amended and any successor act thereto.
"Expiration Date" has the meaning specified in the definition
of Offer to Purchase.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor Federal agency.
"Funded Debt" means all Debt of any Person (including the
Securities), whether secured or unsecured, which by its terms has a final
maturity, duration or payment date more than one year from the date on which
Funded Debt is to be determined (including any Debt of any Person having a
final maturity, duration or payment date within one year from such date which,
pursuant to the terms of any agreement under which it is issued or otherwise,
may be renewed or extended at the option of such Person for more than one year
from such date).
"Global Security" means a Security that evidences all or part
of the Securities issued to the Depositary in accordance with Section 303 and
bearing the legends prescribed in Sections 202 and 303.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and
including, without limitation, any obligation of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Debt or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Debt, (ii) to purchase property, securities or services for
the purpose of assuring the holder of such Debt of the payment of such Debt, or
(iii) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor"
shall have meanings correlative to the foregoing); provided, however, that the
Guarantee by any Person shall not include (a) endorsements by such Person for
collection or deposit, in either case, in the ordinary course of business or
(b) any obligations of the Company with respect to any Wholly Owned Bank
Subsidiary pursuant to any Regulatory Requirement.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
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<PAGE> 17
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to generally accepted
accounting principles or otherwise, of any such Debt or other obligation on the
balance sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing); provided,
however, that a change in generally accepted accounting principles that results
in an obligation of such Person that exists at such time becoming Debt shall
not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
Indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental Indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an
instalment of interest on the Securities.
"Investment" in any Person means (without duplication) the
acquisition or ownership of Capital Stock, bonds, notes, debentures or other
securities or evidence of Debt of such Person, any capital contribution to
such Person, any deposit with, or advance, loan or other extension of credit
to, such Person, any Guarantee of, or other contingent obligation with respect
to, Debt or other liability of such Person or any amount committed to be
advanced, lent or extended to such Person.
"Insured Depository Institution" means an insured depository
institution within the meaning of 12 U.S.C. Section 1813(c)(2) or any
successor law, rule or regulation.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
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<PAGE> 18
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Available Proceeds" from any disposition by any Person
means cash or readily marketable cash equivalents received (including by way of
sale or discounting of a note, instalment receivable or other receivable)
therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred and all federal,
state, provincial, foreign and local taxes required to be accrued as a
liability as a consequence of such disposition, (ii) all payments made by such
Person or its Subsidiaries on any Debt which is secured by such assets in
accordance with the terms of any Lien upon or with respect to such assets or
which must by the terms of such Lien, or in order to obtain a necessary consent
to such disposition or by applicable law, be repaid out of the proceeds from
such disposition, and (iii) all distributions and other payments made to
minority interest holders in Subsidiaries of such Person or joint ventures as a
result of such disposition, and (iv) appropriate amounts to be provided by such
Person or any Subsidiary thereof, as the case may be, as a reserve in
accordance with generally accepted accounting principles against any
liabilities associated with such assets and retained by such Person or such
Subsidiary thereof, as the case may be, after such disposition, including,
without limitation, liabilities under any indemnification obligations and
severance and other employee-termination costs associated with such
disposition.
"Offer" has the meaning specified in the definition of Offer
to Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent
by the Company by first class mail, postage prepaid, to each Holder at his
address appearing in the Security Register on the date of the Offer offering to
purchase up to the principal amount of Securities specified in such Offer at
the purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase
which shall be, subject to any contrary requirements of applicable law, not
less than 30 days or more than 60 days after the date of such Offer and a
settlement date (the "Purchase Date") for purchase of Securities within five
Business Days after the Expiration Date. The Company shall notify the Trustee
at least
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15 Business Days (or such shorter period as is acceptable to the Trustee) prior
to the mailing of the Offer of the Company's obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. The
Offer shall contain information concerning the business of the Company and its
Subsidiaries which the Company in good faith believes will enable such Holders
to make an informed decision with respect to the Offer to Purchase (which at a
minimum will include (i) the most recent annual and quarterly financial
statements and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" contained in the documents required to be filed with the
Trustee pursuant to Section 1017 (which requirements may be satisfied by
delivery of such documents together with the Offer), (ii) a description of
material developments in the Company's business subsequent to the date of the
latest of such financial statements referred to in clause (i) (including a
description of the events requiring the Company to make the Offer to Purchase),
(iii) if applicable, appropriate pro forma financial information concerning the
Offer to Purchase and the events requiring the Company to make the Offer to
Purchase and (iv) any other information required by applicable law to be
included therein. The Offer shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Offer to
Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the
Offer to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding
Securities offered to be purchased by the Company pursuant to the
Offer to Purchase (including, if less than 100%, the manner by which
such has been determined pursuant to the Section hereof requiring the
Offer to Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Securities accepted for payment
(as specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount
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(6) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered
but not purchased by the Company pursuant to the Offer to Purchase
will continue to accrue;
(8) that on the Purchase Date the Purchase Price will
become due and payable upon each Security accepted for payment
pursuant to the Offer to Purchase and that interest thereon shall
cease to accrue on and after the Purchase Date;
(9) that each Holder electing to tender a Security
pursuant to the Offer to Purchase will be required to surrender such
Security at the place or places specified in the Offer prior to the
close of business on the Expiration Date (such Security being, if the
Company or the Trustee so requires, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any
portion of Securities tendered (subject to paragraph (5) above) if the
Company (or its Paying Agent) receives, not later than the close of
business on the Expiration Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Security the Holder tendered, the certificate
number of the Security the Holder tendered and a statement that such
Holder is withdrawing all or a portion of his tender;
(11) that (a) if Securities in an aggregate principal
amount less than or equal to the Purchase Amount are duly tendered and
not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase all such Securities and (b) if Securities in an aggregate
principal amount in excess of the Purchase Amount are tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall
purchase Securities having an aggregate principal amount equal to the
Purchase Amount on a pro rata basis (with such adjustments as may be
deemed appropriate so that only Securities in denominations of $1,000
or integral multiples thereof shall be purchased); and
(12) that in case of any Holder whose Security is
purchased only in part, the Company shall execute, and
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the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in an aggregate
principal amount equal to and in exchange for the unpurchased portion
of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the
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.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
Opinions of counsel required to be delivered may have qualifications customary
for opinions of the type required, and counsel delivering such Opinions of
Counsel may rely on certificates of the Company or government or other
officials customary for opinions of the type required and certificates as to
matters of fact, including that various financial covenants have been complied
with.
"OTS" means the Office of Thrift Supervision or any successor
Federal Agency.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) 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 that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been defeased pursuant to Section
1202 hereof; and
(iv) Securities which 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
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<PAGE> 22
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, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which 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 Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
"Permitted Investments" means (i) any Investment in an
Affiliate or Related Person of the Company which is a Wholly Owned Subsidiary
prior to the Investment, (ii) any Investment of Net Available Proceeds in an
Insured Depository Institution resulting in such institution becoming a Wholly
Owned Bank Subsidiary, (iii) any Investment of Excess Proceeds in accordance
with the provisions of Section 1011, (iv) any extension, renewal or replacement
of Investments of any Person in effect as of the date of the Indenture, (v) any
Investment by an Insured Depository Institution (other than an Investment in an
Unrestricted Subsidiary) permitted in accordance with all applicable Regulatory
Requirements, (vi) any Investment (other than an Investment in an Unrestricted
Subsidiary) that would be permitted to the Company or any Subsidiary of the
Company on the date such Investment is made if the Company on that date were a
multiple savings and loan holding company (as defined in 12 CFR Section 583.12)
in accordance with all applicable Regulatory Requirements, (vii) any Investment
in a Person as a result of which such Person becomes a Wholly Owned Subsidiary,
(viii) any payments or contributions of any kind by the Company to a
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<PAGE> 23
Bank Subsidiary required pursuant to Regulatory Requirements, or (ix)
Investments in the following types of instruments:
(a) direct obligations of the United States of America or any
agency or instrumentality thereof, or obligations guaranteed by the
United States of America or any agency or instrumentality thereof,
provided that such obligations mature within one year from the date of
acquisition thereof; or
(b) demand deposit accounts, or certificates of deposit or
other obligations, maturing within one year after acquisition thereof,
either fully insured by the FDIC (or any successor Federal agency) or
issued by a national or state bank, trust or thrift institution having
capital, surplus and undivided profits of at least $250,000,000, and
having (or being the Wholly Owned Subsidiary of a holding company
having) a short-term credit rating, at the time of purchase, within
one of the two then-highest rating categories of Moody's Investors
Service or Standard & Poor's Corporation; or
(c) commercial paper rated at the time of purchase in one of
the two then-highest rating categories by Moody's Investors Service or
by Standard & Poor's Corporation and maturing not more than 270 days
from the date of creation thereof; or
(d) guaranteed investment contracts of insurance companies
whose claims-paying ability at the time of purchase is rated AA/Aa or
higher by Moody's Investors Service or by Standard & Poor's
Corporation, provided that the total amount of investments in such
contracts which may constitute Permitted Investments at any one time
pursuant to this section (d) shall not at any time exceed 20% of the
Company's total Permitted Investments; or
(e) repurchase agreements with respect to direct obligations
of the United States of America or any agency or instrumentality
thereof, or obligations guaranteed by the United States of America or
any agency or instrumentality thereof, provided that such repurchase
agreements mature within one year from the date of creation thereof;
or
(f) cash.
"Permitted Lien" means the following:
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(i) any Lien existing, or provided for under arrangements
existing, as of the date of this Indenture;
(ii) any Lien on Capital Stock of the Company sold or
contributed to the Banks' employee stock ownership plan;
(iii) any Lien arising by reason of (1) any judgment, decree or
order of any court or other governmental authority, if appropriate legal
proceedings which may have been duly initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired; (2) taxes,
assessments or similar charges not yet delinquent or which are being contested
in good faith; (3) security for the payment of insurance-related obligations
(including but not limited to in respect of deductibles, self-insured retention
amounts and premiums and adjustments thereto); (4) deposits or pledges in
connection with bids, tenders, leases and contracts (other than contracts for
the payment of money); (5) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers, restrictions on the
use of property or minor irregularities of title (and with respect to leasehold
interests, mortgages, obligations, liens and other encumbrances incurred,
created, assumed or permitted to exist and arising by, through or under a
landlord or owner of the leased property, with or without consent of the
lessee), none of which materially impairs the use of any parcel of property
material to the operation of the business of the Company and its Subsidiaries
taken as a whole or the value of such property for the purpose of such
business; (6) deposits or pledges to secure public or statutory obligations,
progress payments, surety and appeal bonds or other obligations of like nature
incurred in the ordinary course of business; (7) title defects, encumbrances,
easements, reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph or telephone lines and other similar purposes or
zoning or other restrictions as to the use of real property not materially
interfering with the ordinary conduct of the business of the Company and its
Subsidiaries taken as a whole; or (8) operation of law, in favor of landlords,
mechanics, carriers, warehousemen, materialmen, laborers, employees, suppliers,
banks or others, incurred in the ordinary course of business for sums which are
not yet delinquent or are being contested in good faith by negotiations or by
appropriate proceedings which suspend the collection thereof;
(iv) any Lien on any computer or management information
systems equipment equipment acquired after the date of this Indenture; and
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<PAGE> 25
(v) any extension, renewal, refinancing or replacement, in
whole or in part, of any Lien described in the foregoing clause (i) (in
addition to any such extension, renewal, refinancing or replacement permitted
pursuant to such clause) so long as the amount of security is not increased
thereby.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"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.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of such Person of any class or classes (however
designated) that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Purchase Amount" has the meaning specified in the definition
of Offer to Purchase.
"Purchase Date" has the meaning specified in the definition of
Offer to Purchase.
"Purchase Price" has the meaning specified in the definition
of Offer to Purchase.
"Redeemable Stock" of any Person means any equity security of
such Person that by its terms or otherwise is required to be redeemed prior to
the final Stated Maturity of the Securities or is redeemable at the option of
the holder thereof at any time prior to the final Stated Maturity of the
Securities.
"Regular Record Date" for the interest payable on any Interest
Payment Date means ______________ or ______________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Regulatory Requirement", as to any Person, means any law,
ordinance, administrative or governmental rule,
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<PAGE> 26
regulation, official interpretation applicable to it or any of its properties,
any formal or informal written demand, directive or notice to such Person by
any administrative or governmental agency requiring or prohibiting action by
such Person, any written agreement between any administrative or governmental
agency and such Person, or any order or decree of any court or governmental
agency or body having jurisdiction over such Person or any of its properties,
including any such order or directive by the OTS applicable to OTS regulated
institutions generally, including such Person.
"Related Person" of any Person means any other Person directly
or indirectly owning (a) 10% or more of the outstanding Common Stock of such
Person (or, in the case of a Person that is not a corporation, 10% or more of
the equity interest in such Person) or (b) 10% or more of combined voting power
of the Voting Stock of such Person.
"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 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
knowledge of and familiarity with the particular subject.
"Restricted Payments" has the meaning specified in Section
1009.
"Securities" has the meaning stated in the first recital of
this Indenture.
"Securities Act" refers to the Securities Act of 1933, as it
may be amended and any successor act thereto.
"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 instalment of interest thereon, means the
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<PAGE> 27
date specified in such Security as the fixed date on which the principal of
such Security or such instalment of interest is due and payable.
"Subordinated Debt" means Debt of the Company as to which the
payment of principal of (and premium, if any) and interest and other payment
obligations in respect of such Debt shall be subordinate to the prior payment
in full of the Securities to at least the following extent: (i) no payments of
principal of (or premium, if any) or interest on or otherwise due in respect of
such Debt may be permitted for so long as any default in the payment of
principal (or premium, if any) or interest on the Securities exists; (ii) in
the event that any other default that with the passing of time or the giving of
notice, or both, would constitute an Event of Default exists with respect to
the Securities, upon notice by the Holders of 25% or more in principal amount
of the Securities to the Trustee, the Trustee shall have the right to give
notice to the Company and the holders of such Debt (or trustees or agents
therefor) of a payment blockage, and thereafter no payments of principal of
(or premium, if any) or interest on or otherwise due in respect of such Debt
may be made for a period of 179 days from the date of such notice; and (iii)
such Debt shall not (x) provide for payments of principal of such Debt at the
stated maturity thereof or by way of a sinking fund applicable thereto or by
way of any mandatory redemption, defeasance, retirement or repurchase thereof
by the Company (including any redemption, retirement or repurchase which is
contingent upon events or circumstances, but excluding any retirement required
by virtue of acceleration of such Debt upon an event of default thereunder),
in each case prior to the final Stated Maturity of the Securities or (y)
permit redemption or other retirement (including pursuant to an offer to
purchase made by the Company) of such other Debt at the option of the holder
thereof prior to the final Stated Maturity of the Securities (unless the
Securities shall no longer be Outstanding), other than a redemption or other
retirement at the option of the holder of such Debt (including pursuant to an
offer to purchase made by the Company) which is conditioned upon the change of
control of the Company pursuant to provisions substantially similar to those
contained in Section 1016 hereof.
"Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other
than a corporation) in which such Person, or one or more other Subsidiaries of
such Person or such Person and one or more other Subsidiaries thereof, directly
or
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indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof. "Subsidiary" shall not include an Unrestricted
Subsidiary created in accordance with the definition of "Unrestricted
Subsidiary".
"Tangible Net Worth" of any Person means its net worth
calculated in accordance with generally accepted accounting principles, less
goodwill.
"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 such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 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.
"U.S. Government Obligations" has the meaning specified in
Section 1204.
"Unrestricted Subsidiary" means (1) any entity which, but for
its designation as an Unrestricted Subsidiary by the Board of Directors, would
be a Subsidiary of the Company, but only if (a) neither the Company nor any of
its other Subsidiaries (i) provides credit support for, or a Guarantee of, any
Debt of such entity or any Subsidiary of such entity (including any
undertaking, agreement or instrument evidencing such Debt) or (ii) is directly
or indirectly liable for any Debt of such entity or any Subsidiary of such
entity, and (b) no default with respect to any Debt of such entity or any
Subsidiary of such entity (including any right which the Holders thereof may
have to take enforcement action against such entity or Subsidiary) would permit
(upon notice, lapse of time or both) any holder of any other Debt of the
Company and its Subsidiaries to declare a default on such other Debt or cause
the payment thereof to be accelerated or payable prior to its final scheduled
maturity and (2) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any Subsidiary (other than the Bank or its successor)
to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock
of, or owns or holds any Lien on any property of, any other Subsidiary of the
Company which is not a Subsidiary of the Subsidiary to be so designated or
otherwise an Unrestricted Subsidiary, provided that either
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(x) the Subsidiary to be so designated has total assets of $1,000 or less or
(y) immediately after giving pro forma effect to such designation, the Company
would then be permitted to make a Restricted Payment pursuant to the
"Limitation on Restricted Payments" covenant in an amount equal to the greater
of (A) the aggregate amount of all Investments made by the Company and all
Subsidiaries of the Company in such proposed Unrestricted Subsidiary and its
Subsidiaries prior to such designation and (B) the Consolidated Adjusted Net
Worth of such proposed Unrestricted Subsidiary, and upon such designation such
amount shall be deemed to be a Restricted Payment. The Board of Directors may
designate any Unrestricted Subsidiary to be a Subsidiary, provided that (i) had
such Unrestricted Subsidiary been a Subsidiary of the Company immediately prior
thereto there would not have occurred and be continuing any Event of Default or
event that with the lapse of time or the giving of notice, or both, would
constitute an Event of Default, and (ii) for purposes of the definition of
"Consolidated Adjusted Net Income," only the net income of such entity for the
period beginning on the date of such designation shall be included therein.
Any such designation by the Board of Directors shall be evidenced to the
Trustee by filing with the Trustee a certified copy of the resolution of the
Board of Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions.
"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".
"Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason
of any contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares) shall at the time be owned
by such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
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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 requirement 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 has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several
documents.
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<PAGE> 31
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
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 Date.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. 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.
Without limiting the generality of the foregoing, a
Holder, including the Depositary that is a Holder of a Global Security, may
make, give or take, by a proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted in this Indenture to be made, given or taken by
Holders, and the Depositary that is a
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<PAGE> 32
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interest in any such Global Security.
(b) 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 the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his 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 which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted
by the Trust Indenture Act, fix any future day as the record date for the
purpose of determining the Holders entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by Holders.
If not set by the Company prior to the first solicitation of a Holder 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, only the Holders on such
date (or their duly designated proxies) shall be entitled to give or take, or
vote on, the relevant action.
(d) The ownership of Securities shall be proved
by the Security Register.
(e) Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
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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: Corp. Trust Dept.,
or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at
the address of its principal office specified in the first
paragraph of this instrument, Attention: General Counsel, 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 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,
whether or not actually received by such Holder. 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. 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 impracticable to give such
notice by mail, then such
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<PAGE> 34
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. Application of Trust Indenture Act.
The Trust Indenture Act shall apply as a matter of
contract to this Indenture for purposes of interpretation, construction and
defining the rights and obligations hereunder. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be 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, other than the parties hereto
and their successors hereunder, any Paying Agent, the Security Registrar and
the Holders of Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
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<PAGE> 35
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date, Purchase Date or Stated Maturity of any Security shall not be
a Business Day, then (notwithstanding any other provision of this Indenture or
of the Securities) payment of interest or principal (and premium, if any) need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the Interest Payment Date,
Redemption Date or Purchase Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Purchase Date or Stated Maturity, as the case may be.
SECTION 114. No Recourse Against Others.
This Indenture and the Securities are solely
corporate obligations of the Company. No recourse shall be had against, and no
personal liability shall attach to, any director, officer, employee,
incorporator, stockholder or Affiliate, past, present or future, of the Company
or any successor thereto, or any of them, because of the creation of the
indebtedness hereby authorized, or under, upon or by reason of any obligation,
covenant or agreement contained in this Indenture or in any of the Securities
or implied therefrom or any claim based thereon or in respect thereof; it being
expressly understood that all such recourse and personal liability are hereby
expressly waived and released as a condition of, and as consideration for, the
execution of this Indenture and the issuance of such Securities.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of
authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
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<PAGE> 36
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
[If a Global Security to be held by The Depository
Trust Company, then insert -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
[If a Global Security, then insert - THIS IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE. UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS
GLOBAL SECURITY SHALL NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
FIRSTFED FINANCIAL CORP.
____% NOTES DUE 2004
No. __________ $________
FirstFed Financial Corp., a corporation duly
organized and existing under the laws of Delaware (herein called the "Company",
which term includes any successor
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<PAGE> 37
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to _______________, or registered assigns, the principal sum of
_______________ Dollars on ______, 2004, and to pay interest thereon from
________, 1994 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on _______ and _______ in
each year, commencing ________, 1995, at the rate of ____% per annum, until the
principal hereof is paid or made available for payment, and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of ____%
per annum on any overdue principal and premium and on any overdue installment
of interest until paid. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the _________ or ________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
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<PAGE> 38
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
FIRSTFED FINANCIAL CORP.
[Seal]
By_______________________
Title:
Attest:
______________________________
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its ____% Notes due 2004 (the "Securities") issued under
an Indenture, dated as of _________, 1994 (herein called the "Indenture"),
between the Company, Harris Trust Company of California, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture) and the Bank of Montreal Trust Company, as Paying Agent. The
Securities are limited in aggregate principal amount to $50,000,000. Reference
is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption upon not
less than 30 nor more than 60 days' notice by mail at any time on or after
_______, 1999 and prior to maturity, as a whole or in part, at the election of
the Company, at the following Redemption Prices (expressed as percentages of
the principal amount): If redeemed during the 12-month period beginning
_____________ of the years indicated,
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
1999 ____
2000 ____
</TABLE>
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<PAGE> 39
<TABLE>
<S> <C>
2001 and thereafter 100%
</TABLE>
Upon the occurrence of a Change of Control, the Company may at its option
redeem the Securities in whole but not in part at 101% of their principal
amount plus accrued interest to the date of redemption. If within 15 days of
such Change of Control the Company has not exercised its option to redeem the
Securities, the Company shall be required to make an Offer to Purchase for all
of the Securities at 101% of their principal amount plus accrued interest to
the date of purchase. The Indenture further provides that, subject to certain
conditions, if certain Net Available Proceeds are available to the Company as a
result of certain dispositions of certain capital stock of Subsidiaries that
are Insured Depository Institutions, the Company shall be required to make an
Offer to Purchase for a specified portion of the Securities at 100% of their
principal amount plus accrued interest to the date of purchase.
The Securities do not have the benefit of any sinking
fund obligations.
In the event of redemption or purchase pursuant to an Offer to Purchase
of this Security in part only, a new Security or Securities for the unredeemed
or unpurchased portion hereof will be issued in the name of Holder hereof upon
the cancellation hereof.
The Indenture contains provisions for defeasance at
any time of (i) the entire indebtedness of this Security or (ii) certain
restrictive covenants and Events of Default with respect to this Security, in
each case upon compliance with certain conditions set forth therein.
If an Event of Default shall occur and be continuing,
the principal of all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions
(including certain amendments permitted without the consent of any Holders) as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in aggregate principal amount of the Securities at
the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under
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<PAGE> 40
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
Unless the context otherwise requires, the Securities
shall constitute one series for all purposes under the Indenture, including
without limitation, amendments, waivers, redemptions and Offers to Purchase.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be overdue,
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<PAGE> 41
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
Upon any consolidation or merger, or any sale,
assignment, conveyance, transfer or disposition of all or substantially all of
the properties and assets of the Company in accordance with the Indenture, the
successor Person to such transaction shall become the obligor on the Security
and the Company, subject to the provisions of the Indenture, shall be
discharged from all obligations and convenants under this Security and the
Indenture.
The Indenture provides that no Holder of any
Securities thereunder may enforce any remedy or institute any proceeding under
the Indenture except to the extent and on the conditions specified therein.
Interest on this Security shall be computed on the
basis of a 360-day year of twelve 30-day months.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by
and construed in accordance with the laws of the State of New York.
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<PAGE> 42
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the
within-mentioned Indenture.
By ____________________
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is limited to
$50,000,000, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Section 304, 305, 306, or 906 or in connection with an
Offer to Purchase pursuant to Section 1011 or 1015.
The Securities shall be known and designated as the
"____% Notes due 2004" of the Company. The Stated Maturity of the Securities
shall be ______, 2004. The Securities shall bear interest at the rate of ____%
per annum, from _______, 1994 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
semi-annually on ______ and _______, commencing _______, 1995, until the
principal thereof is paid or made available for payment.
The principal of (and premium, if any) and interest
on the Securities shall be payable at the office or agency of the Company in
the City of New York, New York maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
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<PAGE> 43
The Securities shall be subject to repurchase by the
Company pursuant to an Offer to Purchase as provided in Sections 1011 and 1015.
The Securities shall be redeemable as provided in
Article Eleven.
The Securities shall be subject to defeasance at the
option of the Company as provided in Article Twelve.
SECTION 302. Denominations.
The Securities shall be issuable only in registered
form without coupons and only 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 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 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 such Company Order shall authenticate and deliver such
Securities.
Each Security shall be dated the date of its
authentication.
No Security 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
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<PAGE> 44
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Company shall execute and the Trustee shall
authenticate one or more Global Securities that (i) shall represent an
aggregate amount equal to the aggregate principal amount of such of the
Outstanding Securities as the Company shall have directed the Trustee to
authenticate in the form of a Global Security or Global Securities, (ii) shall
be registered in the name of the Depositary or the nominee of the Depositary,
(iii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect (or in the form required by the Depositary): "THIS IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY,
THIS GLOBAL SECURITY SHALL NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY."
The Depositary must, at all times while it serves as
such Depositary, be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and any other applicable statute or regulation.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, 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.
If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay. After
the preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to
Section 1002, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary
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<PAGE> 45
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of authorized denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
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 designated pursuant to Section 1002 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 at an office or agency of the Company designated pursuant to Section
1002 for such purpose, 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 any authorized denominations and of
a like aggregate principal amount.
At the option of the Holder, Securities may be
exchanged for other Securities of any authorized denominations and of a like
aggregate principal amount, upon surrender of the 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 which 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 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
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<PAGE> 46
executed, by the Holder thereof or his 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 1108 or in
accordance with any Offer to Purchase pursuant to Section 1011 or 1015 not
involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange any Security during the period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities under Section 1105 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Global Security
shall be exchangeable pursuant to this Section 305 for Securities registered in
the names of Persons other than the Depositary for such Security or its nominee
only if (i) such Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934 at a time when such Depositary is required to be so
registered in order to act as Depositary, (ii) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be so
exchangeable or (iii) there shall have occurred and be continuing a Default or
an event which, with the giving of notice or lapse of time, or both, would
constitute a Default with respect to the Securities. Any Global Security that
is exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as such Depositary shall direct.
Notwithstanding any other provision of this Section,
unless and until it is exchanged in whole or in part for the individual
Securities represented thereby, a Global Security representing all or a portion
of the Securities shall not be transferred except as a whole by the Depositary
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities evidenced in whole or in part by a Global
Security, the Depositary may not sell, assign, transfer or otherwise convey any
beneficial interest in a Global Security evidencing all or part of the
Securities or such series unless such beneficial interest is in an amount equal
to an authorized denomination for Securities of such series.
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<PAGE> 47
Upon the exchange of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee. Individual
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
and the Company shall not have any liability for the accuracy of the
instructions received from the Depositary. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.
Neither the Company nor the Trustee shall have any
responsibility or obligation to any participant in the Depositary, any Person
claiming a beneficial ownership interest in the Securities under or through the
Depositary or any such participant, or any other Person which is not shown on
the Security Register as being a Holder, with respect to (1) the Securities;
(2) the accuracy of any records maintained by the Depositary or any such
participant; (3) the payment by the Depositary or any such participant of any
amount in respect of the principal of or
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<PAGE> 48
premium or interest on the Securities; (4) any notice which is permitted or
required to be given to Holders of Securities under this Indenture; (5) the
selection by the Depositary or any such participant of any Person to receive
payment in the event of a partial redemption of the Securities; or (6) any
consent given or other action taken by the Depositary as Holder of Securities.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security 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 upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security 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.
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 the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
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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.
SECTION 307. Payment of Interest; Interest Rights Preserved.
The Company hereby appoints the Bank of Montreal
Trust Company as Paying Agent and the Bank of Montreal Trust Company hereby
accepts such appointment.
Interest on any Security which 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 preceding __________ or __________, as the case
may be.
Any interest on any Security which 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, 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 (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 and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less
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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 at his 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 (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 in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed
practicable by the Trustee.
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 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 Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of (and premium, if any) and (subject to Section 307) interest on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and
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neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or any Offer to Purchase pursuant to
Section 1011 or 1015 shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be 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; provided, however, that the Trustee shall not be required to
destroy such cancelled Securities.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall 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, upon Company
request and 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 (other than (i) Securities which have
been destroyed, lost or stolen and which have
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been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; 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 trust 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 premium, if any) and interest to the
date of such deposit (in the case of Securities which
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
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relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607 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
premium, if any) 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, 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 the principal of (or
premium, if any, on) any Security at its Maturity; or
(2) default in the payment of any interest upon any
Security when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(3) default, on the applicable Purchase Date, in the
purchase of Securities required to be purchased by the Company
pursuant to an
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Offer to Purchase as to which an Offer has been mailed to
Holders; or
(4) default in the performance, or breach, of
Section 801; or
(5) 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 the performance of
which or the breach of which is elsewhere in this Section
specifically dealt with), 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 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
(6) the occurrence of any event under the terms of
any instrument evidencing or securing Debt for money borrowed
by the Company or any Subsidiary of the Company or under
any mortgage(s), indenture(s) or instrument(s) under which
there may be issued or by which there may be secured or
evidenced any Debt of such type by the Company or any such
Subsidiary with a principal amount then outstanding,
individually or in the aggregate, in excess of $10 million,
whether such Debt now exists or shall hereafter be created,
which (i) shall consist of the failure to pay any portion of
the principal of such Debt when due and payable or any
portion of interest on such Debt when due and payable after the
expiration of any applicable grace period with respect thereto
or (ii) shall have resulted in such Debt becoming or being
declared due and payable prior to the date on which it would
otherwise have become due and payable; or
(7) a final judgment or final judgments (not subject
to appeal and not covered by insurance) for the payment of
money are entered against the Company or any Subsidiary of the
Company in an aggregate amount in excess of $10 million by a
court or courts of
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competent jurisdiction, which judgments remain undischarged or
unbonded or unstayed for a period (during which execution
shall not be effectively stayed) of 60 days after the right to
appeal all such judgments has expired; or
(8) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company or any Subsidiary 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 or any such
Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or
any such Subsidiary under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company
or any such Subsidiary or of any substantial part of the
property of the Company or any such Subsidiary, or ordering
the winding up or liquidation of the affairs of the Company or
any such Subsidiary, 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
(9) the commencement by the Company or any
Subsidiary of 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 the Company or any such Subsidiary to the entry of
a decree or order for relief in respect of the Company or any
Subsidiary 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 the
Company or any Subsidiary of the Company, or the filing by the
Company or any such Subsidiary of a petition or answer or
consent seeking reorganization or relief under any
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applicable Federal or State law, or the consent by the Company
or any such Subsidiary to the filing of such petition or to
the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Subsidiary of the
Company or of any substantial part of the property of the
Company or any Subsidiary of the Company, or the making by the
Company or any Subsidiary of the Company of an assignment for
the benefit of creditors, or the admission by the Company or
any such Subsidiary in writing of its inability to pay its
debts generally as they become due, or the taking of corporate
action by the Company or any such Subsidiary in furtherance of
any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of
Default specified in Section 501(8) or (9)) occurs and is continuing, then and
in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities may declare the principal of all the
Securities 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 and any accrued interest shall become immediately due and
payable. If an Event of Default specified in Section 501(8) or (9) occurs, the
principal of and any accrued interest on the Securities then Outstanding shall
ipso facto become immediately due and payable without any declaration or other
Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration
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, 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,
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(B) the principal of (and premium, if any,
on) any Securities which have become due otherwise
than by such declaration of acceleration (including
any Securities required to have been purchased on the
Purchase Date pursuant to an Offer to Purchase made
by the Company) and, to the extent that payment of
such interest is lawful, interest thereon at the rate
provided by the Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest at
the rate provided by the 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, other than the
non-payment of the principal of Securities which have 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 or, with respect to any Security required to have been
purchased pursuant to an Offer to Purchase made by the
Company, at the Purchase Date 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 premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the
rate provided by the Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders 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
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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 any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of 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 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 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 premium, if any) 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;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on
the Securities 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 for principal (and premium, if any) and
interest, respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto, including the Company.
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SECTION 507. Limitation on Suits.
No Holder of any Security 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;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities 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;
(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;
it being understood and intended that no one or more 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 Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the 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 shall have the right on the terms stated herein and in the
Securities, which is absolute and unconditional, to receive payment of the
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principal of (and premium, if any) and (subject to Section 307) interest on
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date or in the case of an
Offer to Purchase made by the Company and required to be accepted as to such
Security, on the Purchase 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 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 Security 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
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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 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, 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 which 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 may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of (or premium,
if any) or interest on any Security (including any Security
which is required to have been purchased pursuant to an Offer
to Purchase which has been made by the Company); or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security
affected.
[/R]
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.
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SECTION 514. Undertaking for Costs.
In any suit by a Security Holder 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, 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 Company or the Trustee.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions
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furnished to the Trustee and conforming to the requirements of
this Indenture.
(b) In case an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Securities 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; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any
default hereunder as and to the extent provided by the Trust
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Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(5), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, 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;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection 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;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such
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Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, 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 relevant books, records and premises of the
Company as may be reasonable, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) any expenses and compensation for any services rendered
by the Trustee after the occurrence of an Event of Default specified
in Section 501(8) or 501(9) shall, to the extent permitted by
applicable law, constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy,
insolvency, reorganization or other similar laws.
The provisions of this Section shall survive the
termination of this Indenture.
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
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Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder and that the statements made by it in a Statement
of Eligibility on Form T-1 supplied to the Company are true and accurate
subject to the qualifications set forth therein. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, 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, subject to Sections 608 and 613,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee 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 in writing 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) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (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 and all
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loss, liability, damage, claim or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, 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 lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for payment of principal of (and premium, if
any) or interest on Securities.
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.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $50,000,000
(including the capital and surplus of its direct parent, with respect to Harris
Trust Company of California only but not with respect to any successor Trustee)
and maintains an office or agency in the Borough of Manhattan, The City of 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. If at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this
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Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of
the Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) 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 bonafide 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, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) 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 and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
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Trustee shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security 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.
(f) The Company shall give notice of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee to all Holders in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. 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.
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.
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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).
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
(a) semi-annually, not more than 15 days after
each Regular Record Date, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the
Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may
request in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and
content
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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 Holders.
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of 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.
(b) The rights of Holders to communicate with
other Holders with respect to their rights under this Indenture or under the
Securities and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) 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 the names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after April 15 of each year
commencing with the first April 15 following the first issuance of Securities
hereunder, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit pursuant to Section 313(c) of the Trust Indenture Act, a
brief report dated as of such April 15 with respect to any of the events
specified in said Section 313(a) which may have occurred since the later of the
immediately preceding April 15 and the date of this Indenture.
The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act and Section 602 at the times
specified therein.
Reports pursuant to this Section shall be transmitted
in the manner and to the persons required by Section 313(c) and 312(d) of the
Trust Indenture Act.
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(b) A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when the Securities are listed on
any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, etc. Only on Certain Terms.
The Company (a) shall not consolidate with or merge
into any other Person or permit any other Person to consolidate with or merge
into the Company; and (b) shall not, directly or indirectly, transfer, convey,
sell, lease or otherwise dispose of all or substantially all of its
consolidated properties and assets in which the Company does not survive or
in which the Company:
(1) in a transaction in which the Company does not
survive or in which the Company directly or indirectly
transfers, conveys, sells, leases or otherwise disposes of all
or substantially all of its consolidated assets, the successor
entity is organized under the laws of the United States of
America, any State thereof or the District of Columbia and
shall expressly assume, by a supplemental indenture executed
and delivered to the Trustee in form satisfactory to the
Trustee, all of the Company's obligations under this
Indenture;
(2) immediately after giving effect to such
transaction and treating any Debt which becomes an obligation
of the Company or a Subsidiary as a result of such
transaction as having been incurred by the Company or such
Subsidiary at the time of the transaction, no Event of
Default or event that with the passing of time or the giving
of notice, or both, would constitute an Event of Default
shall have happened and be continuing;
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(3) immediately after giving effect to such
transaction, the Consolidated Adjusted Net Worth of the
Company or the successor entity is equal to or greater than
that of the Company immediately prior to the transaction; and
(4) the Company has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer, lease
or acquisition and, if a supplemental
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indenture is required in connection with such transaction,
such supplemental indenture, complies with this Article and
that all conditions precedent herein provided for relating to
such transaction have been complied with, and, with respect to
such Officer's Certificate, setting forth the manner of
determination of the Consolidated Adjusted Net Worth of the
Company or, if applicable, of the Successor Company as
required pursuant to the foregoing.
The foregoing covenant shall not apply to the
consolidation or merger of any Wholly Owned Subsidiary of the Company with or
into the Company, provided that the Company is the surviving entity.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger
of the Company into, any other Person or any transfer, conveyance, sale, lease
or other disposition of all or substantially all of the properties and assets
of the Company as an entirety in accordance with Section 801, the Successor
Company 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
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
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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, or to surrender any right or power
herein conferred upon the Company; or
(3) to secure the Securities pursuant to the
requirements of Section 1012 or otherwise; or
(4) to comply with any requirements of the
Commission in order to effect and maintain the qualification
of this Indenture under the Trust Indenture Act; or
(5) to cure any ambiguity, to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein, or to clarify or
to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided
such action pursuant to this clause (5) shall not adversely
affect the interests of the Holders in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders under this Indenture;
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 instalment of interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon
or any premium payable thereon, or change the place of payment
where, or the
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coin or currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date or, in the case of an Offer to
Purchase which has been made, on or after the applicable
Purchase Date), or
(2) reduce the percentage in principal amount of
the Outstanding Securities, 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 1019, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby, or
(4) following the mailing of an Offer with
respect to an Offer to Purchase pursuant to Section 1011 or
1015, modify the provisions of this Indenture with respect to
such Offer to Purchase in a manner materially adverse to such
Holder.
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
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which 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 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 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.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the
principal of (and premium, if any) and interest on the Securities in accordance
with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where
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Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, or, if such Corporate Trust Office is
not in the Borough of Manhattan, The City of New York, at the office or agency
maintained in the Borough of Manhattan, The City of New York, pursuant to
Section 609 of this Indenture, and the Company hereby appoints the Paying Agent
as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one
or more other offices or agencies (in or outside the Borough of Manhattan, The
City of New York) where the Securities 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 the
Borough of Manhattan, The City of New York, 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 Security Payments to be Held in Trust.
If the Company shall at any time act as its own
Paying Agent, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act; provided
that (a) with respect to any such sums, such trust shall arise and be
enforceable only on and after the date on which payment is due with regard to
such sums, and only to the extent payment is then due, and only as to funds
actually segregated and appropriated to such payments; and (b) nothing in this
Section 1003 shall prevent the payment of sums that have been deposited in
trust with the Trustee in accordance with Article Twelve.
Whenever the Company shall have one or more Paying
Agents, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
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The Company will cause each Paying Agent 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) hold all sums held by it for the payment of
the principal of (and premium, if any) or interest on
Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any payment of principal (and premium, if any) or
interest; and
(3) at any time during the continuance of any
such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal
of (and premium, if any) or interest on any Security and remaining unclaimed
for two years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper published
in the English
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language, customarily published on each Business Day and of general circulation
in The City of 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. Existence.
Subject to Article Eight and Section 1015, 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 in good faith
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 1005. Maintenance of Properties.
The Company will cause all properties used or useful
in the conduct of its business or the business of any Subsidiary of the Company
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, as determined by the Board of Directors
in good faith, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 1006. 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
of its Subsidiaries or upon the income, profits or property of the Company or
any of its Subsidiaries, 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 of its
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Subsidiaries; 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 1007. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries
to, keep at all times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the Company to be
responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in
accordance with good business practice. The Company shall, and shall cause its
Subsidiaries to, use the proceeds from any such insurance policy to repair,
replace or otherwise restore the property to which such proceeds relate, unless
in the good faith judgment of the Company such use is not in the best interests
of the Company or would be disadvantageous to the holders of the Securities.
SECTION 1008. Limitation on Company Funded Debt.
The Company shall not Incur any Funded Debt unless,
after giving effect to the Incurrence of such Debt and the receipt and
application of the proceeds thereof, the Company's Funded Debt would be less
than 90% of the Company's Tangible Net Worth as of the date of the most recent
financial statements filed with the Commission and, of this amount, Funded Debt
of the Company that would rank by its terms, in bankruptcy or otherwise, pari
passu with the Securities would be less than 50% of the Company's Tangible Net
Worth as of the date of the most recent financial statements filed with the
Commission.
Notwithstanding the foregoing limitation, the Company
may Incur Funded Debt to renew, extend, refinance or refund (each, a
"refinancing") any outstanding Funded Debt (or Debt which at the time of
original Incurrence was Funded Debt). Incurred in compliance with the Indenture
in an aggregate principal amount not to exceed the principal amount of the Debt
so refinanced plus the amount of any premium required to be paid in connection
with such refinancing pursuant to the terms of the Debt so refinanced or the
amount of any premium reasonably determined by the Company as necessary to
accomplish such refinancing by means of a tender offer or privately negotiated
repurchase, plus the expenses of the Company incurred in connection with such
refinancing; provided, however, that Funded Debt the
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proceeds of which are used to refinance Debt which is pari passu to the
Securities or subordinate in right of payment to the Securities shall only be
permitted if (A) in the case of any refinancing of Debt which is pari passu to
the Securities, the refinancing Debt is made pari passu to the
Securities or subordinated to the Securities, and, in the case of any
refinancing of Debt which is subordinated to the Securities, the refinancing
Debt constitutes Subordinated Debt and (B) in either case, the
refinancing Funded Debt by its terms, or by the terms of any agreement or
instrument pursuant to which such Funded Debt is issued, (x) does not provide
for payments of principal of such Funded Debt at the stated maturity thereof or
by way of a sinking fund applicable thereto or by way of any mandatory
redemption, defeasance, retirement or repurchase thereof by the Company
(including any redemption, retirement or repurchase which is contingent upon
events or circumstances, but excluding any retirement required by virtue of
acceleration of such Funded Debt upon any event of default thereunder), in each
case prior to the stated maturity of the Debt being refinanced and (y) does not
permit redemption or other retirement (including pursuant to an Offer to
Purchase made by the Company) of such Funded Debt at the option of the holder
thereof prior to the final stated maturity of the Debt being refinanced, other
than a redemption or other retirement at the option of the holder of such
Funded Debt (including pursuant to an Offer to Purchase made by the Company)
which is conditioned upon a change substantially similar to those described in
Section 1015.
SECTION 1009. Limitation on Restricted Payments.
The Company shall not, and shall not permit any Subsidiary of the
Company to, directly or indirectly, (i) declare or pay any dividend, or make
any distribution, in respect of its Capital Stock or to the holders thereof
(including pursuant to a merger or consolidation of the Company or such
Subsidiary, but excluding (a) any pro rata dividend or distribution payable
solely in shares of its Capital Stock or in options, warrants or rights to
acquire shares of its Capital Stock, (b) any dividends or distributions payable
by any Subsidiary of the Company to the Company or another Subsidiary of the
Company and (c) any dividends or distributions payable by any Subsidiary of the
Company pro rata to the holders of such Subsidiary's Capital Stock), (ii)
purchase, redeem, or otherwise retire or acquire for value (a) any Capital
Stock of the Company, any Subsidiary of the Company (other than a Wholly Owned
Subsidiary) or any Related Person of the Company or (b) any options, warrants
or rights to purchase or acquire shares of Capital Stock of the Company, any
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Subsidiary of the Company or any Related Person of the Company or any
securities convertible or exchangeable into shares of Capital Stock of the
Company, any Subsidiary of the Company or any Related Person of the Company,
(iii) make any Investment in any Person, other than a Permitted Investment,
(iv) redeem, defease, repurchase, retire or otherwise acquire or retire for
value prior to any scheduled maturity, repayment or sinking fund payment, Debt
of the Company (other than the Securities and other than in exchange for, or in
an amount not in excess of the net proceeds of, a substantially concurrent
issue and sale (other than to a Subsidiary of the Company) of shares of any
class of Capital Stock (other than Redeemable Stock) of the Company), and (v)
make any Investment in any Unrestricted Subsidiary (each of clauses (i) through
(v) being a "Restricted Payment") if: (1) an Event of Default, or an event that
with the lapse of time or the giving of notice, or both, would constitute an
Event of Default, shall have occurred and be continuing, (2) upon giving effect
to such Restricted Payment, the Company would not be able to Incur $1 of
additional Debt in accordance with the limitations described under the first
paragraph of Section 1008, or (3) upon giving effect to such Restricted
Payment, the aggregate of all Restricted Payments from the date of the
Indenture exceeds the sum of: (a) $7.5 million plus (b) 50% of cumulative
Consolidated Adjusted Net Income after June 30, 1994 through the last day of
the last full fiscal quarter immediately preceding such Restricted Payment for
which quarterly or annual financial statements of the Company are available (or
if such cumulative Consolidated Adjusted Net Income shall be a deficit, minus
100% of such deficit) plus (c) 100% of the aggregate net proceeds, including
the fair value of property other than cash (determined in good faith by the
Board of Directors of the Company as evidenced by a resolution of the Board of
Directors filed with the Trustee), (without duplication, including the issuance
of Capital Stock in (iv) above) from (1) the issuance of Capital Stock (other
than Redeemable Stock) of the Company; (2) the issuance or exercise of options,
warrants or other rights on Capital Stock (other than Redeemable Stock) of the
Company (other than to a Subsidiary of the Company); and (3) the amount by
which Debt or Redeemable Stock of the Company is reduced on the Company's
balance sheet upon the conversion of such Debt or Redeemable Stock into Capital
Stock (other than Redeemable Stock) of the Company (other than by a Subsidiary
of the Company) after the date of the Indenture plus (d) any dividends or
distributions or other similar payments paid to the Company or any Subsidiary
of the Company by any Unrestricted Subsidiary after the date of the Indenture
plus (e) the amount of any repayment (other than a dividend, distribution or
other similar payment) to the Company or a Subsidiary of the Company of any
Investment in, an
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Unrestricted Subsidiary, Affiliate of the Company or Related Person of
the Company to the extent such Investment resulted in the making of a
Restricted Payment; provided that, in the case of clauses (d) and (e),
Consolidated Adjusted Net Income for the purposes of clause (b) above only,
shall not include the amount of any such payments.
The foregoing provision will not be violated by reason of (i) the
payment of any dividend within 60 days after the declaration thereof if at the
declaration date such payment would have complied with the foregoing provision,
(ii) the repurchase, redemption or other acquisition or retirement of any
shares of any class of Capital Stock of the Company or any Related Person of
the Company, in exchange for (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection with which cash is
paid in lieu of the issuance of fractional shares or scrip) or out of the net
cash proceeds of a substantially concurrent issue and sale of shares of Capital
Stock (other than Redeemable Stock) of the Company, (iii) the purchase,
redemption, acquisition, cancellation or other retirement for value of shares
of Capital Stock of the Company, options on any such shares or related stock
appreciation rights or similar securities held by officers or employees or
former officers or employees (or their estates or beneficiaries under their
estates) or by any employee benefit plan, upon death, disability, retirement or
termination of employment or pursuant to the terms of any employee benefit plan
or any other agreement under which such shares of stock or related rights were
issued, provided that the aggregate cash consideration paid for such purchase,
redemption, acquisition, cancellation or other retirement of such shares of
Capital Stock after the date of the Indenture does not exceed $1 million in any
fiscal year; (iv) the repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of principal of any Subordinated
Debt (other than Redeemable Stock) (a "refinancing") through the issuance of
new Subordinated Debt, provided that any such new Debt (1) shall be in a
principal amount that does not exceed the principal amount so refinanced (or,
if such Subordinated Debt provides for an amount less than the principal amount
thereof to be due and payable upon a declaration or acceleration thereof, then
such lesser amount calculated as of the date of determination) plus the amount
of any premium required to be paid in connection with such refinancing pursuant
to the terms of the Debt so refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing by means
of a tender offer or privately negotiated repurchase, plus the expenses of the
Company incurred in connection with such refinancing; (2) has an average life
to stated maturity greater than or equal to the remaining average life to
stated maturity of the Debt so refinanced (or, if shorter, the Securities); and
(3) is expressly subordinated in right of payment to the Securities at least to
the same extent as
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the Subordinated Debt to be refinanced, (v) unsecured loans to
directors or executive officers of the Company or any of its Subsidiaries made
after the date of this Indenture not in the ordinary course of business in an
amount not to exceed $1.5 million in the aggregate at any one time outstanding,
(vi) mortgage and consumer loans to officers, directors or employees of the
Company or its Subsidiaries made by the Bank after the date of the Indenture in
the ordinary course of business, or (vii) payments made pursuant to tax sharing
or tax allocation agreements from Subsidiaries of the Company to the Company or
another Subsidiary of the Company.
SECTION 1010. Limitations Concerning Distributions By Subsidiaries, etc.
The Company shall not, and shall not permit any Subsidiary of the
Company to, suffer to exist any consensual encumbrance or restriction (other
than pursuant to a Regulatory Requirement) on the ability of such Subsidiary
(i) to pay directly or indirectly dividends or make any other distributions in
respect of its Capital Stock or pay any Debt or other obligation owed to the
Company or any other Subsidiary of the Company; (ii) to make loans or advances
to the Company or any Subsidiary of the Company; or (iii) to transfer any of
its property or assets to the Company.
Notwithstanding the foregoing, the Company may permit a Subsidiary to
suffer to exist any such encumbrance or restriction (a) pursuant to an
agreement relating to any Debt Incurred by such Subsidiary prior to the date on
which such Subsidiary was acquired, directly or indirectly, by the Company and
outstanding on such date and not Incurred in anticipation of becoming a
Subsidiary of the Company; (b) pursuant to any agreement existing on the date
of the Indenture, and any extension or renewal thereof; (c) pursuant to
agreements governing Bank Subordinated Debt that (1) prohibit distributions
when (A) an event of default under such agreement has occurred or (B) after
giving effect to such distribution, the Bank would fail to meet the regulatory
capital standards necessary to be deemed a "Tier 1 Institution" under OTS
regulations, or (2) provide for restrictions on distributions that are no more
restrictive than the provisions set forth in Section 1009 or (d) pursuant to an
agreement effecting a renewal, refunding, refinancing or extension of Debt or
Preferred Stock Incurred pursuant to an agreement referred to in clause (a)
above; provided, however, that the provisions contained in such renewal,
refunding, refinancing or extension agreement relating to such encumbrance or
restriction are no more
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restrictive in any material respect than the provisions contained in the
agreement the subject thereof in the reasonable judgment of the Board of
Directors of the Company as evidenced by a resolution of the Board of
Directors.
SECTION 1011. Limitation on Dispositions of Certain Capital Stock and Assets
of Subsidiaries that are Insured Depository Institutions.
(a) The Company shall not, and shall not permit
any Subsidiary of the Company to, directly or indirectly, (i) transfer, convey,
sell, lease or otherwise dispose of any outstanding Common Stock or Voting
Stock of any Bank Subsidiary to any Person other than the Company or a Wholly
Owned Subsidiary of the Company or such Subsidiary, unless (a) such transfer,
conveyance, sale, lease or other disposition shall consist of a sale of all of
the Common Stock and Voting Stock of such Bank Subsidiary owned by the Company
and any Subsidiary of the Company, (b) the Company receives consideration at the
time of such sale at least equal to the fair market value of the Common Stock
or Voting Stock sold (as determined in good faith by the Board of Directors of
the Company), of which the lesser of 75% of such consideration or the then
outstanding principal balance of and accrued interest on the Securities shall
be in the form of cash or readily marketable cash equivalents, (c) and the Net
Available Proceeds from such sale are applied in accordance with the next
sentence, (ii) permit any Bank Subsidiary to merge or consolidate with any
other Person either unless (a) the surviving entity is the Company, a Wholly
Owned Subsidiary of the Company or, in the case of a Bank Subsidiary that is a
Subsidiary of another Subsidiary of the Company, such other Subsidiary or a
Wholly Owned Subsidiary thereof, or (b) the Company receives consideration at
the time of the merger or consolidation at least equal to the fair market value
of the properties and assets of the Bank Subsidiary that is merged or
consolidated (as determined in good faith by the Board of Directors of the
Company), of which the lesser of 75% of such consideration or the then
outstanding principal balance of and accrued interest on the Securities shall
be in the form of cash or readily marketable cash equivalents and the Net
Available Proceeds from such sale are applied in accordance with the next
sentence, (iii) permit any Bank Subsidiary to convey or transfer its properties
and assets substantially as an entirety to any Person except the Company, a
Wholly Owned Subsidiary of the Company or, in the case of a Bank Subsidiary
that is a Subsidiary of another Subsidiary of the Company, such other
Subsidiary or a Wholly Owned Subsidiary thereof unless the Company receives
consideration at the time of the conveyance or transfer at least equal to the
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fair market value of the properties and assets sold (as determined in good
faith by the Board of Directors of the Company), of which the lesser of 75% of
such consideration or the then outstanding principal balance of and accrued
interest on the Securities shall be in the form of cash or readily marketable
cash equivalents and the Net Available Proceeds from such sale are applied in
accordance with the next sentence, and (iv) permit any Bank Subsidiary to issue
shares of its Common Stock or Voting Stock (other than directors' qualifying
shares), or securities convertible into, or warrants, rights or options to
subscribe for or purchase shares of, its Common Stock or Voting Stock, to any
Person other than the Company or a Wholly Owned Subsidiary of the Company or,
in the case of a Bank Subsidiary that is a Subsidiary of another Subsidiary of
the Company, such other Subsidiary or a Wholly Owned Subsidiary thereof. Net
Available Proceeds from transactions described in the preceding sentence shall
be applied, within 270 days from the later of (x) the closing of any such
transaction or (y) the receipt of such Net Available Proceeds, (i) first, to
the extent the Company elects, to make an Investment in an Insured Depository
Institution, (ii) second, to the extent the Company elects, to prepay, repay or
repurchase Debt of a Wholly Owned Subsidiary (other than Debt owed to the
Company or an Affiliate of the Company), (iii) third, to the extent Net
Available Proceeds exceed the amount applied in accordance with clauses (i) and
(ii) ("Excess Proceeds"), to make an offer to apply the Excess Proceeds, once
such Excess Proceeds exceed $5 million, to make an Offer to Purchase the
Securities at a purchase price in cash equal to 100% of their principal amount
plus accrued and unpaid interest to the date of purchase. To the extent Excess
Proceeds exist after application in accordance with clauses (i), (ii) and
(iii), the Company may apply such Excess Proceeds for any general business
purposes not otherwise prohibited under this Indenture.
(b) The Company will mail the Offer for an
Offer to Purchase required pursuant to Section 1011(a) not more than 90 days
after consummation of the disposition referred to in Section 1011(a). The
aggregate principal amount of the Securities to be offered to be purchased
pursuant to the Offer to Purchase shall equal the Excess Proceeds available
therefor pursuant to clause (iii) in the second to last sentence of Section
1011(a) (rounded down to the next lowest integral multiple of $1,000). Each
Holder shall be entitled to tender all or any portion of the Securities owned by
such Holder pursuant to the Offer to Purchase, subject to the requirement that
any portion of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount.
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The Company shall not be entitled to any credit
against its obligations under this Section 1011 for the principal amount of any
Securities acquired by the Company otherwise than pursuant to the Offer to
Purchase pursuant to this Section 1011.
(c) Not later than the date of the Offer with
respect to an Offer to Purchase pursuant to this Section 1011, the Company
shall deliver to the Trustee an Officers' Certificate as to (i) the Purchase
Amount, and (ii) the allocation of the Net Available Proceeds from the
disposition pursuant to which such Offer is being made, including, if amounts
are reinvested in a Wholly Owned Subsidiary, the amount and nature of any
Investment in a Wholly Owned Subsidiary.
The Company and the Trustee shall perform their
respective obligations specified in the Offer for the Offer to Purchase. On or
prior to the Purchase Date, the Company shall (i) accept for payment (on a pro
rata basis, if necessary) Securities or portions thereof tendered pursuant to
the Offer, (ii) deposit with the Paying Agent (or, if the Company is acting as
its own paying agent, segregate and hold in trust as provided in Section 1003)
money sufficient to pay the purchase price of all Securities or portions
thereof so accepted and (iii) deliver or cause to be delivered to the Trustee
all Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent (or the Company, if so acting) shall promptly mail or deliver to Holders
of Securities so accepted payment in an amount equal to the purchase price, and
the Trustee shall promptly authenticate and mail or deliver to such Holders a
new Security equal in principal amount to any unpurchased portion of the
Security surrendered. Any Security not accepted for payment shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Offer on or as soon as practicable after
the Purchase Date.
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SECTION 1012. Limitation on Liens.
The Company shall not incur or suffer to exist any Lien other
than a Permitted Lien on (i) the Voting Stock of the Bank (other than
directors' qualifying shares) as security for Debt or (ii) any of its assets
(other than the Voting Stock of the Bank) as security for Funded Debt, without,
in the cases of either (i) or (ii), effectively providing that the Securities
will be equally and ratably secured with (or, in the case of Subordinated Debt,
prior to) such Debt.
SECTION 1013. Limitation on Transactions with Affiliates and Related
Persons.
The Company shall not, and shall not permit any Subsidiary of the
Company to, enter into any transaction or series of related transactions with
an Affiliate or Related Person of the Company (other than between the Company
and Wholly Owned Subsidiaries of the Company or between Wholly Owned
Subsidiaries of the Company) unless (i) such transaction is on terms no less
favorable to the Company or such Subsidiary (as conclusively evidenced by a
resolution of the Board of Directors of the Company) than those that could be
obtained in a comparable arm's length transaction with an entity that is not an
Affiliate or a Related Person of the Company, (ii) with respect to a
transaction or series of transactions involving aggregate value in excess of
$2.5 million, the transaction or series of transactions is approved by a
majority of the Board of Directors of the Company and (iii) with respect to a
transaction or series of transactions not reported to the OTS involving
aggregate value in excess of $10 million, the Company delivers to the Trustee
an opinion of a nationally recognized investment banking firm stating that the
transaction or series of transactions is fair (from a financial point of view)
to the Company.
Notwithstanding the foregoing, the following shall
not be deemed to be a transaction for purposes of the foregoing: (i) the
issuance by the Company or any Subsidiary of the Company of Debt otherwise
permitted under the Indenture, (ii) any issuance of securities, or other
payments, awards, or grants in cash, securities or otherwise pursuant to, or
the funding of, employment arrangements, benefit plans, stock options and stock
ownership plans approved by the Board of Directors of the Company or any
Subsidiary of the Company, (iii) loans or advances to officers, directors and
employees of the Company or any Subsidiary of the Company made in the ordinary
course of business or approved by the Board of Directors, (iv) any transaction
with an officer or director of the Company or any Subsidiary of the Company
entered into in the ordinary
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course of business, (v) the payment of reasonable fees to directors of the
Company and of any Subsidiary of the Company who are not employees of the
Company or any Subsidiary of the Company, (vi) reasonable and customary
indemnification arrangements between the Company or any Subsidiary of the
Company and their respective directors and officers, (vii) transactions between
the Company or its Subsidiaries, on the one hand, and any investment banking
firm and its Affiliates on the other hand, involving the provision of
financial, consulting or underwriting services, (viii) any Permitted Investment
(ix) any payments, distributions or dividends permitted under Section 1009, (x)
payments made by the Company or any Subsidiary of the Company pursuant to any
tax sharing or tax allocation agreement between the Company and any Subsidiary
of the Company, or (xi) allocation of corporate overhead expenses by the
Company to any Subsidiary of the Company.
SECTION 1014. Maintenance of Status.
The Company shall cause the Bank to do all things
necessary to maintain the Bank's status as an "insured depository institution"
within the meaning of the Federal Deposit Insurance Act.
SECTION 1015. Change of Control.
(a) Upon the occurrence of a Change of Control, the
Company shall be required to make an Offer to Purchase all Outstanding
Securities at a purchase price equal to 101% of their principal amount plus
accrued interest to the Redemption Date. The Company shall comply with the
provisions of Article Eleven if it exercises its redemption option.
The Company shall, within 45 days following the date
of the consummation of a transaction resulting in a Change in Control, mail an
Offer with respect to an Offer to Purchase all Outstanding Securities at a
purchase price equal to 101% of their principal amount plus accrued interest to
the Purchase Date (provided, however, that installments of interest whose
Stated Maturity is on or prior to the Purchase 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). Each Holder shall be entitled
to tender all or any portion of the Securities owned by such Holder pursuant to
the Offer to Purchase, subject to the
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requirement that any portion of a Security tendered must be tendered in an
integral multiple of $1,000 principal amount.
(b) The Company and the Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. On or prior to
the Purchase Date, the Company shall (i) accept for payment Securities or
portions thereof tendered pursuant to the Offer, (ii) deposit with the Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) money sufficient to pay the purchase
price of all Securities or portions thereof so accepted and (iii) deliver or
cause to be delivered to the Trustee all Securities so accepted together with
an Officers' Certificate stating the Securities or portions thereof accepted
for payment by the Company. The Paying Agent shall promptly mail or deliver to
Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security or Securities equal in principal amount to any
unpurchased portion of the Security surrendered as requested by the Holder.
Any Security not accepted for payment shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company shall publicly announce the
results of the Offer on or as soon as practicable after the Purchase Date.
(c) A "Change of Control" shall be deemed to have
occurred in the event that, after the date of the Indenture, either (A) any
Person or any Persons acting together that would constitute a group (for
purposes of Section 13(d) of the Exchange Act, or any successor provision
thereto) (a "Group"), together with any Affiliates or Related Persons thereof,
shall beneficially own (as defined in Rule 13d-3 under the Exchange Act, or any
successor provision thereto) at least 50% of the aggregate voting power of all
classes of Capital Stock of the Company entitled to vote generally in the
election of directors; or (B) any Person or Group, together with any Affiliates
or Related Persons thereof, shall succeed in having a sufficient number of its
nominees elected to the Board of Directors of the Company such that such
nominees, when added to any existing director remaining on the Board of
Directors of the Company after such election who is an Affiliate or Related
Person of such Group, will constitute a majority of the Board of Directors of
the Company.
In the event that the Company makes an Offer to
Purchase the Securities, the Company intends to comply with any applicable
securities laws and regulations, including any applicable requirements of
Section 14(e) of, and Rule 14e-1 under, the Securities Exchange Act of 1934.
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SECTION 1016. Notice Requirement.
The Company will deliver a notice to the Trustee
within 30 days after the Bank receives notice from the OTS that it has ceased
to be a "Tier 1 association" as defined in the OTS regulation regarding capital
distributions. The Trustee will notify the Holders within 30 days of receipt of
such notice in accordance with Section 106 of this Indenture.
SECTION 1017. Provision of Financial Information.
Whether or not the Company is subject to Section
13(a) or 15(d) of the Exchange Act, or any successor provision thereto, the
Company shall prepare the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provision thereto if the
Company were so required, and, unless such filing is not permitted under the
Exchange Act, file such reports and other documents with the Commission on or
prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if the Company were
so required. The Company shall also in any event (a) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) file with the Trustee copies of such annual reports, quarterly reports and
other documents and (b) if filing such documents by the Company with the
Commission is not permitted under the Exchange Act, promptly upon written
request supply copies of such documents to any prospective Holder or
prospective purchaser of Securities.
SECTION 1018. Statement by Officers as to Default; Compliance Certificates.
(a) The Company will deliver to the Trustee, within
90 days after the end of each fiscal year[, and within 60 days after the end of
each fiscal quarter (other than the fourth fiscal quarter),] of the Company
ending after the date hereof an Officers' Certificate of the principal
executive, financial or accounting officer of the Company, stating whether or
not to the best knowledge of the signers thereof the Company is in default in
the performance and observance of any of the terms, provisions and conditions
of Section 801 or Sections 1004 to 1017, inclusive, and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
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(b) The Company shall deliver to the Trustee, as
soon as possible and in any event within 10 days after the Company becomes
aware or should reasonably become aware of the occurrence of an Event of
Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default, and the action which the Company
proposes to take with respect thereto.
(c) The Company shall deliver to the Trustee
within 90 days after the end of each fiscal year a written statement by the
Company's independent public accountants stating (A) that their audit
examination has included a review of the terms of this Indenture and the
Securities as they relate to accounting matters, and (B) whether, in connection
with their audit examination, any event which, with notice or the lapse of time
or both, would constitute an Event of Default has come to their attention and,
if such a default has come to their attention, specifying the nature and period
of the existence thereof.
SECTION 1019. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any covenant or condition set forth in Section 801 or Sections 1004
to 1017, if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant 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 covenant or condition
shall remain in full force and effect; provided, however, with respect to an
Offer to Purchase as to which an Offer has been mailed, no such waiver of any
terms of such Offer that are made for the benefit of the Holders may be made
or shall be effective against any Holder tendering Securities pursuant to
such Offer, and the Company shall not omit to comply with such terms of such
Offer as to such Holder.
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the election of the
Company, as a whole or from time to time in part, at any time on or after
__________________, 1999 and prior to maturity, at the Redemption Prices
specified in the form of Security hereinbefore set forth.
SECTION 1102. Applicability of Article.
Redemption or Securities at the election of the
Company, as permitted by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
pursuant to Section 1101 shall be evidenced by a Board Resolution. In case of
any redemption at the election of the Company of less than all the Securities,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
to be redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities 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 not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $1,000 or any integral multiple thereof) of
the principal amount of Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and
each Securities Registrar in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 1105. 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
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that interest thereon will cease to accrue on and
after said date,
(4) the place or places where such Securities are to
be surrendered for payment of the Redemption Price, and
(5) the CUSIP number.
Notice of redemption of Securities 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.
Such notice if mailed in the manner herein provided
shall be conclusively presumed to have been given, whether or not the Holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 1106. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
the Securities which are to be redeemed on that date.
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SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities 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. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to but excluding the Redemption Date; provided, however,
that 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 Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate provided
by the Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part
shall be surrendered at an office or agency of the Company designated for that
purpose pursuant to Section 1002 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, 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
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at
any time, elect to have either Section 1202 or Section 1203 applied to the
Outstanding Securities upon compliance
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with the conditions set forth below in this Article Twelve.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of the option provided in
Section 1201 applicable to this Section, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding Securities
on the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1204 and as more fully set forth in such Section, payments in respect
of the principal of (and premium, if any) and interest on such Securities when
such payments are due, (B) the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article
Twelve. Subject to compliance with this Article Twelve, the Company may
exercise its option under this Section 1202 notwithstanding the prior exercise
of its option under Section 1203.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of the option provided in
Section 1201 applicable to this Section, (i) the Company shall be released
from its obligations under Sections 1005 through 1018, inclusive, and clauses
(1), (3), and (4) of Section 801 and (ii) the occurrence of an event specified
in Sections 501(3), 501(4) (with respect to clauses (1), (3) or (4) of Section
801), 501(5) (with respect to any of Sections 1005 through 1018, inclusive),
501(6) and 501(7), shall not be deemed to be an Event of Default on and after
the date the conditions set forth below are satisfied (hereinafter, "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 Section or clause, whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or clause or
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by reason of any reference in any such Section or clause to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application
of either Section 1202 or Section 1203 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 609 who shall
agree to comply with the provisions of this Article Twelve
applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B)
U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or
(C) a combination thereof, 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 which shall be applied by
the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and each
instalment of interest on the Securities on the Stated
Maturity of such principal or instalment of interest in
accordance with the terms of this Indenture and of such
Securities. For this purpose, "U.S. Government Obligations"
means securities that are (x) direct obligations of the United
States of America for the payment of which its full faith and
credit is pledged or (y) obligations 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
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America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to
any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) In the case of an election under Section
1202, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (x) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of this Indenture
there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Outstanding
Securities will not recognize gain or loss for Federal income
tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge
had not occurred.
(3) In the case of an election under Section
1203, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the
Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to Federal income tax
on the same amount, in the same manner and at the same times
as would have
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been the case if such deposit and covenant defeasance had not
occurred.
(4) The Company shall have delivered to the
Trustee an Officer's Certificate to the effect that the
Securities, if then listed on any securities exchange, will
not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall
not cause the Trustee to have a conflicting interest as
defined in Section 608 and for purposes of the Trust Indenture
Act with respect to any securities of the Company.
(6) No Event of Default or event which with
notice or lapse of time or both would become an Event of
Default shall have occurred and be continuing on the date of
such deposit or, insofar as subsections 501(8) and (9) are
concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period).
(7) Such defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a
default under, any other material agreement or instrument to
which the Company is a party or by which it is bound.
(8) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for
relating to either the defeasance under Section 1202 or the
covenant defeasance under Section 1203 (as the case may be)
have been complied with.
(9) Such defeasance or covenant defeasance shall
not result in the trust arising from such deposit constituting
an investment company as defined in the Investment Company Act
of 1940, as amended, or such trust shall be qualified under
such act or exempt from regulation thereunder.
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SECTION 1205. 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--collectively, for purposes of this Section 1205, the "Trustee")
pursuant to Section 1204 in respect of the Securities shall be held in trust
and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1204 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities.
Anything in this Article Twelve 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 1204 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
SECTION 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply
any money in accordance with Section 1202 or 1203 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 shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Twelve until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1202 or 1203; provided, however, that (a) if the Company makes any
payment of principal of (and premium, if any) or interest
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on any Security following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or the Paying Agent and (b) the
Trustee or Paying Agent shall, after payment of their respective fees, return
all such United States dollars and U.S. Government Obligations to the Company
promptly after receiving a Company Request therefor at any time, if such
reinstatement of the Company's obligations has occurred and continues to be in
effect at such time.
____________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
FIRSTFED FINANCIAL CORP.
By:__________________________
Name:
Title:
Attest:
____________________ _____________________________
Name:
Title:
HARRIS TRUST COMPANY OF
CALIFORNIA
By:__________________________
Name:
Title:
Attest:
____________________
Name:
Title:
The undersigned agrees to
act as Paying Agent hereunder
BANK OF MONTREAL TRUST COMPANY
By:_________________________
Name:
Title:
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STATE OF CALIFORNIA ) ss.:
COUNTY OF LOS ANGELES )
On the ____ day of _______, 1994, before me
personally came _______________, to me known, who, being by me duly sworn, did
depose and say that he is __________ of FIRSTFED FINANCIAL CORP., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
_______________________
STATE OF CALIFORNIA ) ss.:
COUNTY OF LOS ANGELES )
On the ____ day of ____, 1994, before me personally
came ________________, to me known, who, being by me duly sworn, did depose and
say that he is _______________ of HARRIS TRUST COMPANY OF CALIFORNIA, one of
the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto
by like authority.
___________________________
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