<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 25, 1997.
REGISTRATION NO. 333-29757
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
BAY VIEW CAPITAL CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 94-3078031
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1840 GATEWAY DRIVE
SAN MATEO, CALIFORNIA 94404
(415) 573-7300
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------
ROBERT J. FLAX, ESQ.
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
BAY VIEW CAPITAL CORPORATION
1840 GATEWAY DRIVE
SAN MATEO, CALIFORNIA 94404
(415) 573-7300
---------------
COPIES TO:
CHRISTOPHER R. KELLY, P.C. PAUL C. PRINGLE
SILVER, FREEDMAN & TAFF, L.L.P. ERIC S. HAUETER
1100 NEW YORK AVENUE, N.W. BROWN & WOOD LLP
WASHINGTON, D.C. 20005 555 CALIFORNIA STREET
(202) 414-6100 SAN FRANCISCO, CALIFORNIA 94104
(202) 682-0354 (FAX) (415) 772-1200
(415) 397-4621 (FAX)
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
---------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, please check the
following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] ___________________________________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER UNIT(3) PRICE(1)(3) FEE
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Subordinated Debt Securities.............. $150,000,000 100% $150,000,000 $45,455*
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
* Paid previously.
(1) Securities registered hereby may be offered for U.S. dollars or the
equivalent thereof in foreign currencies, currency units or composite
currencies.
(2) If any Debt Securities are issued at an original issue discount, then such
greater amount as may be sold for an aggregate initial offering price of
up to the proposed maximum aggregate offering price.
(3) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(o). The proposed maximum offering price will be
determined from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder.
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 OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JUNE 25, 1997
PROSPECTUS
BAY VIEW CAPITAL CORPORATION
SUBORDINATED DEBT SECURITIES
-----------
Bay View Capital Corporation (the "Company") may from time to time offer and
sell its unsecured subordinated debt securities (the "Securities" or the "Debt
Securities") in one or more series for an aggregate initial public offering
price of up to $150,000,000 (or the equivalent in foreign currencies, currency
units or composite currencies (each, a "Currency")). The Securities will be
subordinated in right of payment to all existing and future Senior Indebtedness
(as defined herein). See "Description of Debt Securities--Subordination."
Payment of the principal of the Securities may be accelerated only in the case
of certain events involving the bankruptcy, insolvency or reorganization of the
Company or any Major Bank Subsidiary (as defined) of the Company, and no right
of acceleration will exist in the case of default in the payment of the
principal of, or premium, if any, or interest, if any, on the Securities or in
the performance of any other covenant of the Company. See "Description of Debt
Securities--Events of Default."
The Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the accompanying Prospectus
Supplement. The Securities will be offered to the public at prices and on terms
determined at the time of offering. The Securities may be sold for U.S. dollars
or other Currencies and any amounts payable by the Company in respect of the
Securities may likewise be payable in U.S. dollars or other Currencies. Net
proceeds from the sale of Securities will be equal to the purchase price in the
case of a dealer, the public offering price less discount in the case of an
underwriter or the purchase price less commission in the case of an agent, in
each case less other expenses attributable to the issuance and distribution of
the Securities. The Company may also sell Securities directly to investors on
its own behalf. In the case of sales made directly by the Company, no
commission will be payable. See "Plan of Distribution" for possible
indemnification arrangements for dealers, underwriters and agents.
The Prospectus Supplement to this Prospectus sets forth (where applicable),
with respect to the series or issue of Securities for which such Prospectus
Supplement is being delivered, the terms of such Securities offered, including,
where applicable, their title, aggregate principal amount, maturity, rate of
interest (or method of calculation) and time of payment thereof, any redemption
or repayment terms, the Currency or Currencies (if other than U.S. dollars) in
which such Securities will be denominated or payable, any index, formula or
other method pursuant to which principal, premium, if any, or interest, if any,
may be determined, and other specific terms not described in this Prospectus.
This Prospectus may not be used to consummate sales of Securities unless
accompanied or, to the extent permitted by applicable law, preceded by a
Prospectus Supplement.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
THESE SECURITIES ARE UNSECURED OBLIGATIONS OF THE COMPANY AND ARE NOT DEPOSITS
OR SAVINGS ACCOUNTS AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
-----------
The date of this Prospectus is , 1997.
<PAGE>
Certain persons participating in an offering of Securities may engage in
transactions that stabilize, maintain or otherwise affect the price of such
Securities. Such transactions may include stabilizing and the purchase of such
Securities to cover syndicate short positions. For a description of any such
activities, see the applicable Prospectus Supplement.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the Commission's
Regional Offices in New York (Seven World Trade Center, 13th Floor, New York,
New York 10048), and Chicago (Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661). Copies of these materials may be obtained from
the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such material may also be
accessed electronically by means of the Commission's home page on the Internet
at http://www.sec.gov. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
This Prospectus constitutes a part of a registration statement on Form S-3
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
omits certain of the information contained in the Registration Statement in
accordance with the rules and regulations of the Commission. Reference is
hereby made to the Registration Statement and related exhibits for further
information with respect to the Company and the Securities. Statements
contained herein concerning the provisions of any document are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed or incorporated by reference as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified in
its entirety by such reference.
FORWARD-LOOKING STATEMENTS
Certain statements included or incorporated by reference herein and in the
accompanying Prospectus Supplement constitute "forward-looking statements"
within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act and are subject to a number of risks and uncertainties. Any such
forward-looking statements contained or incorporated by reference herein or in
the accompanying Prospectus Supplement should not be relied upon as
predictions of future events. Certain such forward-looking statements can be
identified by the use of forward-looking terminology such as "believes,"
"expects," "may," "will," "should," "seeks," "approximately," "intends,"
"plans," "projects," "pro forma," "estimates" or "anticipates" or similar
expressions or the negative thereof or other variations thereof or comparable
terminology, or by discussions of strategy, plans or intentions. Such forward-
looking statements are necessarily dependent on assumptions, data or methods
that may be incorrect or imprecise and they may be incapable of being
realized. In that regard, the following factors, among others and in addition
to the matters discussed elsewhere in this Prospectus, the accompanying
Prospectus Supplement and the documents incorporated or deemed to be
incorporated by reference herein, could cause actual results and other matters
to differ materially from those in such forward-looking statements: failure by
the Company to realize expected cost savings or revenue enhancements from the
Merger (as hereinafter defined); deposit attrition, customer loss or revenue
loss following the Merger; costs or difficulties related to the integration of
the businesses of the Company and AFEH (as hereinafter defined) and their
respective subsidiaries following the Merger; changes in the terms of the
Merger, including the possibility that the Company may have to increase the
number of shares of its common stock issued to consummate the Merger; failure
to consummate the Merger; changes in interest rates which may, among other
things, adversely affect margins; competition in the banking, financial
services and related industries; government regulation and tax matters; credit
and other risks of lending and investment activities; changes in conditions in
the securities markets; and changes in regional and national business and
economic conditions and inflation. As a result of the foregoing, no assurance
can be given as to future results of operations or financial condition, and
the Company wishes to caution prospective investors not to rely on any such
forward-looking statements. The Company does not undertake, and specifically
disclaims any obligation, to update any forward-looking statements, which
speak only as of the date made.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the Commission
and are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
2. The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1997.
3. The Company's Current Report on Form 8-K dated February 7, 1997.
4. The Company's Current Report on Form 8-K dated March 4, 1997.
5. The Company's Current Report on Form 8-K dated May 8, 1997.
6. The Company's Current Report on Form 8-K dated June 19, 1997.
7. The Company's Current Report on Form 8-K dated June 23, 1997.
8. The Company's Current Report on Form 8-K dated June 23, 1997.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior
to the termination of the offering of the Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from
the respective dates of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein, in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein or in the applicable Prospectus Supplement modifies or
supersedes such statement. Any statement or document so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute part
of this Prospectus.
The Company will furnish without charge to each person to whom this
Prospectus is delivered, upon request, a copy of any and all of the documents
described above that are incorporated by reference herein other than exhibits
to such documents which are not specifically incorporated by reference in such
documents. Written or telephone requests should be directed to: Robert J.
Flax, Esq., Executive Vice President, General Counsel and Secretary, Bay View
Capital Corporation, 1840 Gateway Drive, San Mateo, California 94404
(telephone (415) 573-7300).
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in
this Prospectus or the applicable Prospectus Supplement and, if given or made,
such information or representations must not be relied upon as having been
authorized. Neither this Prospectus nor any Prospectus Supplement constitutes
an offer to sell or the solicitation of an offer to buy any securities other
than the securities described in this Prospectus and such Prospectus
Supplement or an offer to sell or the solicitation of an offer to buy such
securities in any jurisdiction where or to any person to whom it is unlawful
to make such an offer or solicitation. Neither the delivery of this Prospectus
or any Prospectus Supplement nor any sale made hereunder or thereunder shall,
under any circumstances, create any implication that there has been no change
in the affairs of the Company since the date hereof or thereof or that the
information contained or incorporated by reference herein or therein is
correct as of any time subsequent to its date.
3
<PAGE>
THE COMPANY
Bay View Capital Corporation (the "Company"), a Delaware corporation, is a
savings and loan holding company which has as its primary wholly owned
subsidiaries (i) Bay View Bank (the "Bank"), a federally chartered capital
stock savings bank, (ii) California Thrift & Loan ("CTL"), a California
industrial bank operating a consumer finance company, (iii) Concord Growth
Corporation ("CGC"), a California corporation operating a commercial finance
company, and (iv) Bay View Securitization Corporation ("BVSC"), a Delaware
corporation formed for the purpose of issuing asset-backed securities through
a trust. The Company was organized in 1989 to become the holding company for
the Bank following the Bank's 1986 conversion from a mutual to stock chartered
federal savings association. The Company's executive offices are located at
1840 Gateway Drive, San Mateo, California 94404, and its telephone number is
(415) 573-7300. Unless otherwise indicated or unless the context otherwise
requires, all references in this Prospectus and any Prospectus Supplement to
the Company include Bay View Capital Corporation and its consolidated
subsidiaries.
On May 8, 1997, the Company signed a definitive agreement to acquire America
First Eureka Holdings, Inc. ("AFEH") and AFEH's wholly owned subsidiary,
EurekaBank, a Federal Savings Bank ("EurekaBank"). Under the terms of the
definitive merger agreement (the "Merger Agreement"), America First Financial
Fund 1987-A Limited Partnership (the "Partnership"), the sole stockholder of
AFEH, is to receive shares of the common stock of the Company valued at
approximately $210 million (subject to possible adjustment) plus $90 million
in cash. Pursuant to the Merger Agreement, AFEH will be merged into the
Company, with the Company as the surviving corporation (the "Merger"), and
EurekaBank will be merged into the Bank, with the Bank as the surviving bank.
Consummation of the acquisition is subject to the satisfaction of a number of
conditions set forth in the Merger Agreement, including approval by the
Company's stockholders and the limited partners and the beneficial unit
certificate holders of the Partnership, and the regulatory approval of the
Office of Thrift Supervision (the "OTS"). At March 31, 1997, EurekaBank had
total assets of approximately $2.2 billion, deposits of approximately $1.9
billion and stockholder's equity of approximately $174 million.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the Securities
offered hereby for general corporate purposes, which may include, among other
things, the repayment of indebtedness, investments in or extensions of credit
to its subsidiaries and the financing of acquisitions.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratios of earnings to fixed
charges for the Company for the periods indicated. Earnings represent income
from continuing operations before income taxes, fixed charges and
extraordinary items. Fixed charges include interest expense and the portion of
rental expense which approximates the interest component of lease payments.
Such information is qualified in its entirety by the more detailed financial
information set forth in the Company's financial statements and notes thereto
appearing in the documents incorporated herein by reference. See
"Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
------------ --------------------------------
1997 1996 1996 1995 1994 1993 1992
------ ------ ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges:
Including interest on customer
deposits...................... 1.25x 1.19x 1.12x 0.98x(1) 1.17x 1.18x 1.07x
Excluding interest on customer
deposits...................... 1.52x 1.49x 1.31x 0.96x(1) 1.35x 1.41x 1.14x
</TABLE>
- --------
(1) For the year ended December 31, 1995, earnings were insufficient to cover
fixed charges. The amount of the deficiency was $2,853,710.
4
<PAGE>
SELECTED FINANCIAL DATA
The following selected financial data of the Company as of and for the five
years ended December 31, 1996 (other than certain ratios set forth below) have
been derived from the consolidated financial statements of the Company, which
have been audited by Deloitte & Touche LLP, independent auditors. The
following selected financial data of the Company as of and for the three
months ended March 31, 1996 and 1997 (other than certain ratios set forth
below) have been derived from the unaudited consolidated financial statements
of the Company which, in the opinion of management of the Company, include all
adjustments, consisting only of normal recurring adjustments, necessary for a
fair presentation of such information. Data for the three months ended March
31, 1997 does not purport to be indicative of the results to be expected for
the fiscal year ending December 31, 1997. Per share data has been restated to
reflect the two-for-one common stock split effected by the Company on June 2,
1997. The following selected financial data should be read in conjunction
with, and is qualified by reference to, the Company's financial statements and
the related notes thereto which are incorporated by reference herein. See
"Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
---------------------- ----------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---------- ---------- ---------- ---------- ---------- ---------- ----------
SELECTED BALANCE SHEET
INFORMATION (AT END (DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
OF PERIOD)
<S> <C> <C> <C> <C> <C> <C> <C>
Total assets........... $3,044,610 $2,910,295 $3,300,262 $3,004,496 $3,166,529 $2,663,542 $2,586,775
Investment securities.. 24,501 16,031 29,006 47,963 32,841 11,399 23,231
Mortgage-backed
securities............ 558,190 680,208 577,613 731,378 921,680 718,696 457,215
Loans receivable....... 2,292,277 2,043,266 2,474,717 2,062,268 2,054,563 1,776,820 1,943,346
Customer deposits...... 1,655,840 1,809,030 1,763,967 1,819,840 1,707,376 1,694,263 1,488,252
Borrowings............. 1,156,440 873,031 1,245,537 941,465 1,219,958 741,414 884,479
Stockholders' equity... 192,134 203,268 200,062 207,977 217,315 210,976 196,869
SELECTED RESULTS OF
OPERATIONS INFORMATION
Interest income........ $ 58,156 $ 53,409 $ 241,755 $ 216,463 $ 197,326 $ 191,526 $ 219,834
Interest expense....... (37,101) (37,195) (160,773) (160,547) (130,401) (121,850) (148,295)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net interest income.... 21,055 16,214 80,982 55,916 66,925 69,676 71,539
Provision for losses on
loans................. (565) (600) (1,898) (4,284) (2,367) (7,031) (24,953)
Gain (loss) on loans
and securities........ 925 (262) (1,453) (2,510) (1,081) 1,091 378
Other income........... 2,658 2,085 10,017 8,652 8,619 8,465 6,708
Equity in loss of real
estate joint ventures. -- -- -- -- -- -- (1,275)
Provision for losses on
real estate........... 448 53 103 (749) (145) (819) (1,872)
SAIF recapitalization
assessment............ -- -- (11,750) -- -- -- --
Other expenses......... (15,275) (10,575) (56,755) (59,879) (49,610) (48,976) (40,834)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income (loss) before
income tax expense.... 9,246 6,915 19,246 (2,854) 22,341 22,406 9,691
Income tax (expense)
benefit............... (3,984) (2,922) (8,277) 708 (7,828) (9,765) (3,596)
Cumulative effect of
accounting change..... -- -- -- -- -- -- 4,197
Extraordinary items,
net of tax............ -- -- -- (2,544) -- (132) (265)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income (loss) $ 5,262 $ 3,993 $ 10,969 $ (4,690) $ 14,513 $ 12,509 $ 10,027
========== ========== ========== ========== ========== ========== ==========
Primary earnings (loss)
per share:
Income before
cumulative effect of
accounting change and
extraordinary items.. $ 0.39 $ 0.28 $ 0.79 $ (0.14) $ 1.01 $ 0.90 $ 0.44
Net income (loss)..... $ 0.39 $ 0.28 $ 0.79 $ (0.32) $ 1.01 $ 0.89 $ 0.73
Dividends per share.... $ 0.075 $ 0.075 $ 0.305 $ 0.30 $ 0.30 $ 0.30 $ 0.30
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
---------------- -------------------------------------------
1997 1996 1996 1995 1994 1993 1992
------- ------- ------- ------- ------- ------- -------
SELECTED OTHER
INFORMATION(1) (DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
Net interest margin.... 2.72% 2.21% 2.57% 1.86% 2.34% 2.74% 2.84%
Ratio of general and
administrative
expenses to average
assets................ 1.89% 1.45% 1.84% 1.84% 1.59% 1.78% 1.51%
Efficiency ratio (2)... 61.65% 58.68% 64.79% 88.30% 62.60% 59.98% 49.95%
Return on average
assets (3)............ 0.68% 0.54% 0.34% (0.15)% 0.49% 0.47% 0.38%
Return on average
equity (3)............ 10.72% 7.75% 5.39% (2.11)% 6.79% 6.14% 5.10%
Dividend payout ratio
(4)................... 19.23% 26.79% 38.61% (93.75)% 29.70% 33.71% 40.82%
Book value per share... $ 14.81 $ 14.73 $ 14.98 $ 14.64 $ 15.16 $ 14.95 $ 14.32
Tangible book value per
share................. $ 14.08 $ 14.36 $ 14.22 $ 14.23 $ 14.47 $ 14.08 $ 13.77
Average capital/average
assets................ 6.36% 6.97% 6.37% 7.17% 7.17% 7.61% 7.47%
Ratio of capital to
total assets.......... 6.31% 6.98% 6.06% 6.92% 6.86% 7.92% 7.61%
Nonperforming assets
("NPA") (5)........... $22,758 $29,150 $24,310 $38,811 $50,577 $72,365 $69,301
Ratio of NPA to total
assets................ 0.75% 1.00% 0.74% 1.29% 1.60% 2.72% 2.68%
Troubled debt
restructurings ("TDR")
(5)................... $ 505 $ 3,623 $ 509 $15,641 $13,948 $14,188 $20,791
Ratio of TDR to total
assets................ 0.02% 0.12% 0.02% 0.52% 0.44% 0.53% 0.80%
</TABLE>
- -------
(1) The selected other information is based upon data as of the end of and for
the respective periods, except that average assets, average equity and
average capital have been calculated by averaging the relevant month-end
amounts for the respective periods.
(2) The efficiency ratio is computed by dividing general and administrative
expense by the sum of net interest income and recurring noninterest
income.
(3) The return on average assets and average equity is computed by dividing
net income (loss) by average assets and average equity, respectively. See
note (1) above.
(4) The dividend payout ratio is calculated by dividing dividends per share by
net income (loss) per share.
(5) For a definition of nonperforming assets and troubled debt restructurings,
see "Management's Discussion and Analysis of Financial Condition and
Results of Operations--Balance Sheet Analysis--Delinquent, Nonaccrual and
Restructured Loans" in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996.
SELECTED PRO FORMA FINANCIAL DATA
The following selected unaudited pro forma financial data combines the
historical consolidated results of operations of the Company with the
historical consolidated results of operations of AFEH as if the Merger of AFEH
into the Company had occurred as of January 1, 1996. The Merger will be
accounted for using the purchase method of accounting. The following selected
unaudited pro forma financial data is based upon a number of assumptions and
estimates, and is subject to a number of uncertainties, relating to the
proposed Merger of AFEH into the Company and related matters, including, among
other things, estimates, assumptions and uncertainties regarding (i) the
amount of goodwill which will arise from the Merger and the period over which
such goodwill will be amortized (in that regard, the following pro forma
financial data is based upon preliminary estimates of goodwill and no
assurance can be given that actual goodwill will not be more or less than the
estimated amount reflected in such pro forma financial data); (ii) the amount
of expense accruals for direct acquisition costs and the amount of expenses
associated with branch closings, settlements of existing contracts and
severance pay; (iii) the amount of and interest rate on anticipated additional
borrowings; and (iv) the amount of the deferred tax asset resulting from
AFEH's tax loss carryforwards. The pro forma data also assumes that the
Company will issue 8,077,000 shares of its common stock to the Partnership in
connection with the proposed Merger. See "The Company." However, the actual
number of shares issued will depend upon the market price of the Company's
common stock prior to the Merger and the number of shares issued therefore may
be more or less than the foregoing amount. Accordingly, the foregoing selected
unaudited pro forma financial data does not purport to be indicative of the
actual results of operations that would have been achieved had the Merger of
AFEH into the Company in fact occurred on the date indicated, nor does it
purport to be indicative of the results of operations that may be achieved in
the future. In addition, the consummation of the Merger is subject to
satisfaction of a number of conditions, and no assurance can be given that the
Merger will be consummated on the currently anticipated terms or at all. See
"The Company." The following selected unaudited pro forma financial data
should be read in conjunction with, and is qualified by reference to, the pro
forma condensed combined financial statements and related notes thereto and
the historical financial statements of the Company and AFEH and related notes
thereto incorporated by reference herein.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEAR ENDED
MARCH 31, 1997 DECEMBER 31, 1996
-------------- -----------------
(DOLLARS IN THOUSANDS
EXCEPT PER SHARE AMOUNTS)
<S> <C> <C>
Net interest income....................... $34,021 $132,194
Net income................................ $ 6,417 $ 5,740
Net income per share...................... $ 0.30 $ 0.26
</TABLE>
6
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be subordinated unsecured obligations of the
Company issued in one or more series under an Indenture (the "Indenture") to
be entered into between the Company and a trustee (the "Trustee") whose name
will be set forth in the applicable Prospectus Supplement. The form of the
Indenture has been filed as an exhibit to the Registration Statement. The
terms of any series of Debt Securities will be those set forth in the
Indenture and such Debt Securities and those made part of the Indenture by the
Trust Indenture Act. The summary of certain provisions of the Indenture and
the Debt Securities set forth below and the summary of certain terms of a
particular series of Debt Securities set forth in the applicable Prospectus
Supplement do not purport to be complete and are subject to and are qualified
in their entirety by reference to all of the provisions of the Indenture,
which provisions of the Indenture (including defined terms) are incorporated
herein by reference. Certain capitalized terms used herein and not defined are
defined in the Indenture. Likewise, the description of certain provisions of
federal and state law set forth below does not purport to be complete. As used
in this "Description of Debt Securities," all references to the "Company"
shall mean Bay View Capital Corporation, excluding, unless the context shall
otherwise require, its subsidiaries.
The following description of Debt Securities sets forth certain general
terms and provisions of the series of Debt Securities to which any Prospectus
Supplement may relate. Certain other specific terms of any particular series
of Debt Securities will be described in the applicable Prospectus Supplement.
To the extent that any particular terms of the Debt Securities described in a
Prospectus Supplement differ from any of the terms described herein, then such
terms described herein shall be deemed to have been superseded by such
Prospectus Supplement.
GENERAL
The Debt Securities may be issued from time to time in one or more series.
The Indenture does not limit the aggregate principal amount of Debt Securities
which may be issued thereunder and provides that Debt Securities of any series
may be issued thereunder up to an aggregate principal amount which may be
authorized from time to time by the Company. Reference is made to the
applicable Prospectus Supplement relating to the series of Debt Securities
offered thereby for specific terms, including (where applicable): (1) the
title or designation of such Debt Securities; (2) any limit on the aggregate
principal amount of such Debt Securities; (3) the price or prices (expressed
as a percentage of the principal amount thereof) at which such Debt Securities
will be issued; (4) the date or dates on which the principal of such Debt
Securities will be payable, or the method or methods, if any, by which such
date or dates will be determined; (5) the rate or rates (which may be fixed or
variable) at which such Debt Securities will bear interest, if any, or the
method or methods, if any, by which such rate or rates are to be determined,
the date or dates, if any, from which such interest will accrue, or the method
or methods, if any, by which such date or dates are to be determined, and
whether and under what circumstances Additional Amounts on such Debt
Securities will be payable, and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve 30-day months; (6)
the dates on which such interest, if any, will be payable and the record
dates, if any, therefor; (7) the place or places where the principal of,
premium, if any, and interest, if any, on such Debt Securities will be payable
and the place or places where such Debt Securities may be surrendered for
registration of transfer and exchange, if other than The City of New York; (8)
if applicable, the date or dates on which, the period or periods within which,
the price or prices at which and the other terms and conditions upon which
such Debt Securities may be redeemed at the option of the Company or are
subject to repurchase at the option of the holders; (9) the terms of any
sinking fund or analogous provision; (10) if other than U.S. dollars, the
Currency for which the Debt Securities may be purchased and the Currency in
which the payment of principal thereof and premium, if any, and interest, if
any, thereon may be made, and the ability, if any, of the Company or the
holders of Debt Securities to have payments made in any Currency other than
those in which the Debt Securities are stated to be payable; (11) any addition
to, or modification or deletion of, any covenant or Event of Default with
respect to such Debt Securities; (12) whether any such Debt Securities are to
be issuable in registered or bearer form or both and, if in bearer form, the
terms and conditions relating thereto and any limitations on issuance of such
Bearer Securities (including in exchange for Registered Securities of the same
series); (13) whether any such Debt Securities will be issued in temporary
7
<PAGE>
or permanent global form and, if so, the identity of the depositary for such
global Debt Security; (14) whether and under what circumstances the Company
will pay Additional Amounts (as contemplated by the Indenture) on such Debt
Securities to any holder who is a United States Alien (as defined in the
Indenture, as such definition may be modified) in respect of any tax,
assessment or other governmental charge and, if so, whether the Company will
have the option to redeem such Debt Securities rather than pay such Additional
Amounts; (15) the person to whom any interest on any Registered Securities of
the series shall be payable, if other than the person in whose name the
Registered Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, the manner
in which, or the person to whom, any interest on any Bearer Security of the
series shall be payable, if other than upon presentation and surrender of the
coupons appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary global Debt
Security will be paid if other than in the manner provided in the Indenture;
(16) the portion of the principal amount of such Debt Securities which shall
be payable upon acceleration thereof if other than the full principal amount
thereof; (17) the authorized denominations in which such Debt Securities will
be issuable, if other than denominations of $1,000 and any integral multiple
thereof (in the case of Registered Securities) or $5,000 (in the case of
Bearer Securities); (18) whether the amount of payments of principal of,
premium, if any, and interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method or methods (any
such Debt Securities being hereinafter called "Indexed Securities") and the
manner in which such amounts will be determined; and (19) any other terms of
such Debt Securities.
As used in this Prospectus and any Prospectus Supplement relating to the
offering of any Debt Securities, references to the principal of and premium,
if any, and interest, if any, on such Debt Securities will be deemed to
include mention of the payment of Additional Amounts, if any, required by the
terms of such Debt Securities in such context.
Debt Securities may be issued as Original Issue Discount Securities (as
defined in the Indenture) to be sold at a substantial discount below their
principal amount. In the event of an acceleration of the maturity of any
Original Issue Discount Security, the amount payable to the holder thereof
upon such acceleration will be determined in the manner described in the
applicable Prospectus Supplement. As noted elsewhere herein, the maturity of
the Debt Securities may be accelerated only in the case of certain events of
bankruptcy, insolvency or reorganization of the Company or any Major Bank
Subsidiary (as defined herein) of the Company. See "--Events of Default;
Limited Rights of Acceleration." Material federal income tax and other
considerations applicable to Original Issue Discount Securities will be
described in the applicable Prospectus Supplement.
If the purchase price of any Debt Securities is payable in a Currency other
than U.S. dollars or if principal of, or premium, if any, or interest, if any,
on any of the Debt Securities is payable in any Currency other than U.S.
dollars, the specific terms and other information with respect to such Debt
Securities and such foreign Currency will be specified in the Prospectus
Supplement relating thereto.
Under the Indenture, the terms of the Debt Securities of any series may
differ and the Company, without the consent of the holders of the Debt
Securities of any series, may reopen a previous series of Debt Securities and
issue additional Debt Securities of such series or establish additional terms
of such series.
REGISTRATION, TRANSFER, PAYMENT AND PAYING AGENT
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of Debt Securities will be issued in registered form only, without
coupons. The Indenture, however, provides that the Company may also issue Debt
Securities in bearer form only, or in both registered and bearer form. Bearer
Securities shall not be offered, sold, resold or delivered in connection with
their original issuance in the United States or to any United States person
(as defined below) other than offices located outside the United States of
certain United States financial institutions. As used herein, "United States
person" means any citizen or resident of the United States, any corporation,
partnership or other entity created or organized in or under the laws of the
United States, any estate the income of which is subject to United States
federal income taxation regardless of its source, or any trust whose
administration is subject to the primary supervision of a United States court
and which has one or
8
<PAGE>
more United States fiduciaries who have the authority to control all
substantial decisions of the trust, and "United States" means the United
States of America (including the states thereof and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.
Purchasers of Bearer Securities will be subject to certification procedures
and may be affected by certain limitations under United States tax laws. Such
procedures and limitations will be described in the Prospectus Supplement
relating to the offering of the Bearer Securities.
Unless otherwise indicated in the applicable Prospectus Supplement,
Registered Securities will be issued in denominations of $1,000 or any
integral multiple thereof, and Bearer Securities will be issued in
denominations of $5,000.
Unless otherwise indicated in the applicable Prospectus Supplement, the
principal, premium, if any, and interest, if any, of or on the Debt Securities
will be payable, and Debt Securities may be surrendered for registration of
transfer or exchange, at an office or agency to be maintained by the Company
in the Borough of Manhattan, The City of New York, provided that payments of
interest with respect to any Registered Security may be made at the option of
the Company by check mailed to the address of the person entitled thereto or
by transfer to an account maintained by the payee with a bank located in the
United States. No service charge shall be made for any registration of
transfer or exchange of Debt 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 therewith.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest, if any, on Bearer Securities
will be made, subject to any applicable laws and regulations, at such office
or agency outside the United States as specified in the Prospectus Supplement
and as the Company may designate from time to time. Unless otherwise indicated
in the applicable Prospectus Supplement, payment of interest due on Bearer
Securities on any Interest Payment Date will be made only against surrender of
the coupon relating to such Interest Payment Date. Unless otherwise indicated
in the applicable Prospectus Supplement, no payment of principal, premium or
interest with respect to any Bearer Security will be made at any office or
agency in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the
United States; provided, however, that if amounts owing with respect to any
Bearer Securities shall be payable in U.S. dollars, payment with respect to
any such Bearer Securities may be made at the Corporate Trust Office of the
Trustee or at any office or agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount
of such principal, premium or interest at all offices outside of the United
States maintained for such purpose by the Company is illegal or effectively
precluded by exchange controls or similar restrictions.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company will not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before any selection of Debt Securities of that
series of like tenor to be redeemed and ending at the close of business on the
day of that selection; (ii) register the transfer of or exchange any
Registered Security, or portion thereof, called for redemption, except the
unredeemed portion of any Registered Security being redeemed in part; (iii)
exchange any Bearer Security called for redemption, except to exchange such
Bearer Security for a Registered Security of that series and like tenor that
is simultaneously surrendered for redemption; or (iv) issue, register the
transfer of or exchange any Debt Security which has been surrendered for
repayment at the option of the holder, except the portion, if any, of such
Debt Security not to be so repaid.
RANKING OF DEBT SECURITIES; HOLDING COMPANY STRUCTURE
The Subordinated Debt Securities will be unsecured obligations of the
Company and will be subordinated in right of payment to all existing and
future Senior Indebtedness as described below under "-- Subordination of Debt
Securities."
The Debt Securities are obligations exclusively of the Company. The Company
is a holding company, substantially all of whose consolidated assets are held
by its subsidiaries. Accordingly, the cash flow of the Company and the
consequent ability to service its debt, including the Debt Securities, are
primarily dependent
9
<PAGE>
upon the results of operations of such subsidiaries. Various statutory and
regulatory restrictions, however, limit directly or indirectly the amount of
dividends the Company's subsidiaries (including the Bank and CTL) can pay, and
also restrict the Bank and CTL from making investments in or loans to the
Company.
In particular, savings associations, such as the Bank, that before and after
a proposed capital distribution meet their regulatory capital requirements,
may make capital distributions during any calendar year equal to the greater
of (i) 100% of net income for the year-to-date plus 50% of the lowest of the
amounts by which the association's tangible, core or risk-based capital
exceeds its regulatory capital requirement for such capital component, as
measured at the beginning of the calendar year, or (ii) 75% of its net income
for the most recent four quarter period. The Bank currently may pay dividends
in accordance with this general authority. However, an association deemed to
be in need of more than normal supervision by the OTS may have its dividend
authority restricted by the OTS. In general, savings associations proposing to
make any capital distribution need only submit written notice to the OTS 30
days prior to such distribution. The OTS may object to the distribution during
that 30-day period notice based on safety and soundness concerns.
Under California law, a California-chartered thrift and loan, such as CTL,
is not permitted to declare dividends on its capital stock unless it has at
least $750,000 of unimpaired capital plus additional capital of $50,000 for
each branch office maintained. In addition, under California law, no
California corporation, including CTL and CGC, may pay dividends unless, in
general, (i) the payment would not exceed the corporation's retained earnings
or (ii) in the alternative, after giving effect to the dividend, and subject
to certain adjustments and exceptions, (A) the sum of the corporation's assets
(exclusive of goodwill, capitalized research and development expenses and
deferred charges) would not be less than 125% of its liabilities (not
including deferred taxes, deferred income and other deferred credits) and (B)
if the corporation classifies its assets into current and fixed assets, the
current assets of the corporation would be at least equal to its current
liabilities or, if the corporation's average earnings before income taxes and
interest expense for the two preceding fiscal years were less than its average
interest expense for such fiscal years, at least equal to 125% of its current
liabilities. In addition, a California corporation is not permitted to make a
dividend or other distribution to its shareholders if it is, or as a result
thereof would be, likely to be unable to meet its liabilities as they mature.
A California corporation must also meet certain additional financial tests to
pay dividends on any junior class or series of stock if it has outstanding any
preferred or other senior class or series of stock. BVSC, a Delaware
corporation, is subject to certain limitations on dividends under Delaware
law.
Neither the Bank nor CTL may pay a dividend if the institution does not meet
its minimum regulatory capital requirements prior to, or as a result of, such
dividend unless it receives prior regulatory approval.
Because the Company is a holding company, the Debt Securities will be
effectively subordinated to all existing and future liabilities, including
indebtedness, customer deposits, trade payables, guarantees and lease
obligations, of the Company's subsidiaries. Therefore, the Company's rights
and the rights of its creditors, including the holders of the Debt Securities,
to participate in the assets of any subsidiary upon the latter's liquidation
or reorganization will be subject to the prior claims of such subsidiary's
creditors and, if applicable, its depositors, except to the extent that the
Company may itself be a creditor with recognized claims against the
subsidiary, in which case the claims of the Company would still be effectively
subordinate to any security interest in, or mortgages or other liens on, the
assets of such subsidiary and would be subordinate to any indebtedness of such
subsidiary senior to that held by the Company. In that regard, in the event
that a receiver or conservator is appointed for any subsidiary of the Company
whose deposits are insured by the Federal Deposit Insurance Corporation (the
"FDIC"), such as the Bank, the Federal Deposit Insurance Act recognizes a
priority in favor of the holders of withdrawable deposits (including the FDIC
as subrogee or transferee) over general creditors. Thus, in the event of a
conservatorship or receivership of such a subsidiary, claims for customer
deposits would have a priority over any claims the Company may itself have as
a creditor of such subsidiary. The Indenture does not limit the amount of
indebtedness or other liabilities that may be incurred by the Company and its
subsidiaries. See "--Absence of Limitation on Indebtedness and Liens; Absence
of Event Risk Protection."
10
<PAGE>
DEBT SECURITIES INTENDED TO QUALIFY AS TIER 2 CAPITAL
It is currently intended that the Debt Securities would qualify, in the
event the Company were to become a bank holding company (which would occur if
the Bank were to convert from a federal savings bank to a commercial bank or
if the Company were to acquire control of a commercial bank), as Tier 2
Capital under the guidelines established by the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") for bank holding
companies. The guidelines set forth specific criteria for subordinated debt to
qualify as Tier 2 Capital. Among other things, the subordinated debt must: (i)
be unsecured; (ii) have a minimum average maturity of five years; (iii) be
subordinated in right of payment; (iv) not contain provisions permitting the
holders thereof to accelerate payment of principal prior to maturity except in
the event of bankruptcy, insolvency or reorganization of the issuer or a major
bank subsidiary of the issuer; and (v) not contain provisions that would
adversely affect liquidity or unduly restrict management's flexibility to
operate the organization, particularly in times of financial difficulty, such
as limitations on additional secured or senior borrowings, sales or
dispositions of assets or changes in control. See "--Events of Default;
Limited Rights of Acceleration" and "--Subordination."
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on
behalf of, a depositary (the "Depositary") identified in the Prospectus
Supplement relating to such series. Global Debt Securities may be issued in
either registered or bearer form and in either temporary or permanent form.
Unless and until it is exchanged in whole or in part for individual
certificates evidencing Debt Securities in definitive form, a global Debt
Security may not be transferred except as a whole by the Depositary for such
global Debt Security 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 of such Depositary or a nominee
of such successor.
The specific terms of the depositary arrangement with respect to a series of
global Debt Securities and certain limitations and restrictions relating to a
series of global Bearer Securities will be described in the Prospectus
Supplement relating to such series.
OUTSTANDING DEBT SECURITIES
In determining whether the holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the Indenture, (i) the portion of
the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be that portion of the
principal amount thereof that could be declared to be due and payable upon a
declaration of acceleration thereof pursuant to the terms of such Original
Issue Discount Security as of the date of such determination, (ii) the
principal amount of any Indexed Security that shall be deemed to be
outstanding for such purpose shall be the principal face amount of such
Indexed Security determined on the date of its original issuance, (iii) the
principal amount of a Debt Security denominated in a Currency other than U.S.
dollars shall be the U.S. dollar equivalent, determined on the date of
original issue of such Debt Security, of the principal amount of such Debt
Security and (iv) any Debt Security owned by the Company or any obligor on
such Debt Security or any Affiliate of the Company or such other obligor shall
be deemed not to be outstanding.
REDEMPTION AND REPURCHASE
The Debt Securities of any series may be redeemable at the option of the
Company, may be subject to mandatory redemption pursuant to a sinking fund or
otherwise, or may be subject to repurchase by the Company at the option of the
holders, in each case upon the terms, at the times and at the prices set forth
in the applicable Prospectus Supplement. However, the Company currently does
not intend to issue Debt Securities with redemption or repurchase features to
the extent such features would prevent the Debt Securities from qualifying as
Tier 2 Capital under the Federal Reserve Board's guidelines. See "--Debt
Securities Intended to Qualify as Tier 2 Capital."
11
<PAGE>
ABSENCE OF LIMITATION ON INDEBTEDNESS AND LIENS; ABSENCE OF EVENT RISK
PROTECTION
The Indenture does not limit the amount of indebtedness, guarantees or other
liabilities that may be incurred by the Company and its subsidiaries and does
not prohibit the Company and its subsidiaries from creating or assuming liens
on their property (including capital stock of the Bank and other subsidiaries
of the Company). The Indenture does not require the maintenance of any
financial ratios by, or specified levels of net worth, revenues, income, cash
flow or liquidity of, the Company. The Indenture does not contain provisions
which would give holders of the Debt Securities the right to require the
Company to repurchase their Debt Securities in the event of a takeover,
recapitalization or similar restructuring or change in control of the Company.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that the Company shall not, in any transaction or
series of related transactions, consolidate with or merge into any Person or
sell, assign, transfer, lease or otherwise convey all or substantially all its
properties and assets to any Person unless (a) either the Company shall be the
continuing entity, or the successor Person (if other than the Company) is a
corporation which is organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and shall
expressly assume the due and punctual payment of the principal of, premium, if
any, and interest, if any, on all the Debt Securities outstanding under the
Indenture and the performance of the Company's other obligations under the
Indenture and the Debt Securities outstanding thereunder; (b) immediately
after giving effect to such transaction, no Event of Default under the
Indenture, and no event which, after notice or lapse of time or both would
become an Event of Default under the Indenture, shall have happened and be
continuing; and (c) certain other conditions are met.
Upon any such merger, consolidation, sale, assignment, transfer, lease or
conveyance in which the Company is not the continuing corporation, the
successor corporation formed by such consolidation or into which the Company
is merged or to which such sale, assignment, transfer, lease or other
conveyance is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under the Indenture with the same effect
as if such successor corporation had been named as the Company therein and
thereafter (except in the case of a lease) the Company shall be released from
its obligations under the Indenture and the Debt Securities.
EVENTS OF DEFAULT; LIMITED RIGHTS OF ACCELERATION
Unless otherwise specified in the applicable Prospectus Supplement, an Event
of Default with respect to the Debt Securities of any series is defined in the
Indenture as being: (i) default for 30 days in payment of any interest with
respect to any Debt Security of such series; (ii) default in payment of
principal or any premium with respect to any Debt Security of such series when
due upon maturity, redemption, repurchase at the option of the holder or
otherwise; (iii) default in deposit of any sinking fund payment when due with
respect to any Debt Security of such series; (iv) default by the Company in
the performance, or breach, of any other covenant or warranty in the Indenture
(other than a covenant or warranty included therein solely for the benefit of
series of Debt Securities other than that series) or any Debt Security of such
series which shall not have been remedied for a period of 30 days after notice
to the Company by the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debt Securities of such series then outstanding; (v)
certain events of bankruptcy, insolvency or reorganization of the Company or
any Major Bank Subsidiary of the Company; or (vi) any other Event of Default
established for the Debt Securities of such series. No Event of Default with
respect to any particular series of Debt Securities necessarily constitutes an
Event of Default with respect to any other series of Debt Securities. The
Indenture provides that the Trustee may withhold notice to the holders of the
Debt Securities of any series of the occurrence of a default with respect to
the Debt Securities of such series (except a default in payment of principal,
premium, if any, interest, if any, or sinking fund payments, if any) if the
Trustee considers it in the interest of the holders to do so.
No Event of Default described in clauses (i), (ii), (iii), (iv) or (vi) of
the preceding paragraph permits acceleration of the payment of the principal
of the Debt Securities. The Indenture provides that, if an Event of Default
described under clause (v) of the preceding paragraph shall have occurred and
be continuing, either the
12
<PAGE>
Trustee or the holders of at least 25% in principal amount of the Debt
Securities of any series then outstanding may declare the principal amount (or
if any Debt Securities of such series are Original Issue Discount Securities,
such lesser amount as may be specified in the terms thereof) of all the Debt
Securities of such series to be due and payable immediately, but upon certain
conditions such declaration and its consequences may be rescinded and annulled
by the holders of a majority in principal amount of the Debt Securities of
such series then outstanding.
As described in the preceding paragraph, there is no right of acceleration
in the case of, among other things, (i) a default in the payment of the
principal of, or premium, if any, or interest, if any, on, or sinking fund
payments, if any, with respect to, the Debt Securities, (ii) a default in the
performance of any other covenant of the Company in the Indenture or the Debt
Securities, or (iii) a default in the payment or acceleration of any other
indebtedness of the Company or any of its subsidiaries. In the case of a
default in the payment of principal of, or premium, if any, or interest, if
any, on any Debt Securities, the Trustee, subject to certain limitations and
conditions, may institute a judicial proceeding for the collection thereof.
The limitation on acceleration described above is intended, in the event the
Company were to become a bank holding company (which would occur if the Bank
were to convert from a federal savings bank to a commercial bank or if the
Company were to acquire control of a commercial bank), to permit the Debt
Securities to qualify as Tier 2 Capital under the guidelines established by
the Federal Reserve Board for bank holding companies. See "--Debt Securities
Intended to Qualify as Tier 2 Capital."
Subject to the provisions of Trust Indenture Act requiring the Trustee,
during the continuance of an Event of Default under the Indenture, to act with
the requisite standard of care, the Trustee is under no obligation to exercise
any of its rights or powers under the Indenture at the request or direction of
any of the holders of Debt Securities of any series unless such holders have
offered the Trustee reasonable indemnity. Subject to the foregoing, holders of
a majority in principal amount of the then outstanding Debt Securities of any
series issued under the Indenture shall have the right, subject to certain
limitations, to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee under the Indenture with respect to
such series. The Indenture requires the annual filing by the Company with the
Trustee of a certificate as to whether or not the Company is in default under
the terms of the Indenture.
Notwithstanding any other provision of the Indenture, the holder of any Debt
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and interest, if any, on such
Debt Security on the respective due dates therefor and to institute suit for
enforcement of any such payment, and such right shall not be impaired without
the consent of such holder.
CERTAIN DEFINITIONS
As used in the Indenture, the following terms shall have the meanings set
forth below:
"Major Bank Subsidiary" means (i) the Bank and any successor to all or
substantially all of the business of the Bank, in each case so long as it
shall be a Subsidiary of the Company and (ii) any Significant Subsidiary of
the Company which is a bank, trust company, savings bank, savings and loan
association, savings association or other banking or thrift institution.
"Significant Subsidiary" means, with respect to any person, any Subsidiary
of such person which is a "significant subsidiary" as defined in Rule 1-02(w)
of Regulation S-X promulgated under the Securities Act of 1933 (as in effect
on the date of the Indenture), but substituting 50 percent for 10 percent in
each place that 10 percent appears in such Rule.
"Subsidiary" means, with respect to any person (the "Subject Person"), any
corporation or other person at least a majority of the equity ownership
interests or Voting Stock of which is at the time owned, directly or
indirectly, by the Subject Person and/or one or more other Subsidiaries of the
Subject Person.
"Voting Stock" means, with respect to any person, any class or classes or
series or series of capital stock of such person pursuant to which the holders
thereof have the general voting power under ordinary circumstances
13
<PAGE>
to elect at least a majority of the board of directors, managers or trustees
of such person (irrespective of whether or not, at the time, capital stock of
any other class or classes or series or series shall have, or might have,
voting power by reason of the happening of any contingency).
MODIFICATION, WAIVERS AND MEETINGS
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of a majority in principal amount of the
outstanding Debt Securities of each series issued under the Indenture and
affected by a modification or amendment, to modify or amend any of the
provisions of the Indenture or of the Debt Securities of such series or the
rights of the holders of the Debt Securities of such series under the
Indenture, provided that no such modification or amendment shall, among other
things, (i) change the stated maturity of the principal of, or premium, if
any, or any installment of interest, if any, on any Debt Securities issued
under the Indenture or reduce the principal amount thereof or any premium
thereon, or reduce the rate of interest thereon, or reduce the amount of
principal of any Original Issue Discount Securities that would be due and
payable upon an acceleration of the maturity thereof, or change any place
where, or the Currency in which, any Debt Securities issued under the
Indenture are payable, or impair the holder's right to institute suit to
enforce the payment of any such Debt Securities on or after the stated
maturity thereof, or make any change that adversely affects the right, if any,
to convert or exchange such Debt Securities for other securities in accordance
with their terms, or (ii) reduce the aforesaid percentage of Debt Securities
of any series issued under the Indenture, the consent of the holders of which
is required for any such modification or amendment or the consent of whose
holders is required for any waiver (of compliance with certain provisions of
the Indenture or certain defaults thereunder and their consequences) or reduce
the requirements for a quorum or voting at a meeting of holders of such Debt
Securities or (iii) modify any of the provisions of Article Sixteen thereof
(relating to subordination of the Debt Securities) or the definition of Senior
Indebtedness in a manner adverse to the holders of the Debt Securities,
without in each such case obtaining the consent of the holder of each
outstanding Debt Security issued under the Indenture so affected.
The Indenture also contains provisions permitting the Company and the
Trustee, without the consent of the holders of any Debt Securities issued
thereunder, to modify or amend the Indenture in order to, among other things,
(a) add to the Events of Default or the covenants of the Company for the
benefit of the holders of all or any series of Debt Securities issued under
the Indenture; (b) to add or change any provisions of the Indenture to
facilitate the issuance of Bearer Securities; (c) to establish the form or
terms of Debt Securities of any series and any related coupons; (d) to cure
any ambiguity or correct or supplement any provision therein which may be
inconsistent with other provisions therein or to make any other provisions
with respect to matters or questions arising under the Indenture which in any
case shall not adversely affect the interests of the holders of any series of
Debt Securities issued thereunder in any material respect; or (e) to amend or
supplement any provision contained in the Indenture, provided that such
amendment or supplement does not apply to any outstanding Debt Securities
first issued prior to the date of such amendment or supplement and entitled to
the benefits of such provision.
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of any series may waive compliance by the Company with certain
restrictive provisions, if any, of the Indenture, including the covenants, if
any, described in the applicable Prospectus Supplement. The Holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
any series may, on behalf of all holders of Debt Securities of that series,
waive any past default under the Indenture with respect to Debt Securities of
that series and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest, if any, on any Debt Securities
of such series or in respect of a covenant or provision which cannot be
modified or amended without the consent of the holder of each outstanding Debt
Securities of such series affected.
The Indenture contains provisions for convening meetings of the holders of
Debt Securities of a series issued thereunder. A meeting may be called at any
time by the Trustee, and also, upon request, by the Company or the holders of
at least 10% in principal amount of the outstanding Debt Securities of such
series, in any such
14
<PAGE>
case upon notice given in accordance with the provisions of the Indenture.
Except for any consent which must be given by the holder of each outstanding
Debt Security affected thereby, as described above, any resolution presented
at a meeting or adjourned meeting duly reconvened at which a quorum (as
described below) is present may be adopted by the affirmative vote of the
holders of a majority in principal amount of the outstanding Debt Securities
of that series; provided, however, that any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which may be made, given or taken by the holders of a specified
percentage, which is more or less than a majority, in principal amount of the
outstanding Debt Securities of a series may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal
amount of the outstanding Debt Securities of that series. Any resolution
passed or decision taken at any meeting of holders of Debt Securities of any
series duly held in accordance with the Indenture will be binding on all
holders of Debt Securities of that series and the related coupons. The quorum
at any meeting called to adopt a resolution, and at any reconvened meeting,
will be persons holding or representing a majority in principal amount of the
outstanding Debt Securities of a series, subject to certain exceptions.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Upon the direction of the Company, the Indenture shall cease to be of
further effect with respect to any series of Debt Securities issued thereunder
specified by the Company (subject to the survival of certain provisions
thereof, including the obligation, if any, to pay Additional Amounts) when
(i) either (A) all outstanding Debt Securities of such series and, in the case
of Bearer Securities, all coupons appertaining thereto, have been delivered to
the Trustee for cancellation (subject to certain exceptions) or (B) all Debt
Securities of such series and, if applicable, any coupons appertaining
thereto, have become due and payable or will become due and payable at their
stated maturity within one year or are to be called for redemption within one
year and the Company has deposited with the Trustee, in trust, funds in U.S.
dollars or in such Foreign Currency in which such Debt Securities are payable
in an amount sufficient to pay the entire indebtedness on such Debt Securities
in respect of principal (and premium, if any) and interest, if any, to the
date of such deposit (if such Debt Securities have become due and payable) or
to the Maturity thereof, as the case may be, (ii) the Company has paid all
other sums payable under the Indenture with respect to the Debt Securities of
such series, and (iii) certain other conditions are met. If the Debt
Securities of any such series provide for the payment of Additional Amounts,
the Company will remain obligated, following such deposit, to pay Additional
Amounts on such Debt Securities.
Unless otherwise provided in the applicable Prospectus Supplement, the
Company may elect with respect to any series of Debt Securities either (a) to
defease and be discharged from any and all obligations with respect to such
Debt Securities (except for, among other things, the obligation to pay
Additional Amounts, if any, upon the occurrence of certain events of taxation,
assessment or governmental charge with respect to payments on such Debt
Securities, and the obligations to register the transfer or exchange of such
Debt Securities, to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities, to maintain an office or agency in respect of such Debt
Securities, to hold moneys for payment in trust, and, if applicable, to
exchange or convert such Debt Securities into other securities in accordance
with their terms) ("defeasance"), or (b) to be released from its obligations
with respect to such Debt Securities under a restrictive covenant set forth in
the Indenture and such other restrictive covenants, if any, as may be set
forth in the applicable Prospectus Supplement, and any omission to comply with
such obligations shall not constitute a default or an Event of Default with
respect to the Debt Securities of such series ("covenant defeasance"), in
either case upon the irrevocable deposit with the Trustee (or other qualifying
trustee), in trust for such purpose, of an amount, in U.S. dollars or in such
Foreign Currency in which such Debt Securities are payable at Stated Maturity
or, if applicable, upon redemption, and/or Government Obligations (as defined
in the Indenture) which through the payment of principal and interest in
accordance with their terms will provide money, in an amount sufficient to pay
the principal of and any premium and any interest on such Debt Securities, and
any mandatory sinking fund or analogous payments thereon, on the scheduled due
dates therefor or the applicable redemption date, as the case may be.
15
<PAGE>
Such defeasance or covenant defeasance shall only be effective if, among
other things, (i) it shall not result in a breach or violation of, or
constitute a default under, the Indenture or any other material agreement or
instrument to which the Company or any Major Bank Subsidiary is a party or by
which it is bound, (ii) the Company has delivered to the Trustee an opinion of
counsel (as specified in the Indenture) to the effect that the holders of such
Debt Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance or covenant defeasance, as the case
may be, and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, (iii) if the cash and
Government Obligations deposited are sufficient to pay the outstanding Debt
Securities of such series provided such Debt Securities are redeemed on a
particular redemption date, the Company shall have given the Trustee
irrevocable instructions to redeem such Debt Securities on such date and (iv)
it is effected during the last year prior to the final stated maturity of such
Debt Securities. It shall also be a condition to the effectiveness of
defeasance and covenant defeasance that no Event of Default or event which
with notice or lapse of time or both would become an Event of Default with
respect to Debt Securities of such series shall have occurred and been
continuing on the date of, or, solely in the case of Events of Default
described in clause (v) of the first paragraph under "--Events of Default;
Limited Rights of Acceleration" above, during the period ending on the 91st
day after the date of, such deposit into trust.
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any
series, (a) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to the Indenture or the terms of such Debt Security to
receive payment in a Currency other than that in which such deposit has been
made in respect of such Debt Security, or (b) a Conversion Event (as defined
below) occurs in respect of the Foreign Currency in which such deposit has
been made, the indebtedness represented by such Debt Security shall be deemed
to have been, and will be, fully discharged and satisfied through the payment
of the principal of (and premium, if any) and interest, if any, on such Debt
Security as such Debt Security becomes due out of the proceeds yielded by
converting the amount so deposited in respect of such Debt Security into the
Currency in which such Debt Security becomes payable as a result of such
election or such Conversion Event based on (x) in the case of payments made
pursuant to clause (a) above, the applicable market exchange rate for such
Foreign Currency in effect on the second business day prior to such payment
date, or (y) with respect to a Conversion Event, the applicable market
exchange rate for such Foreign Currency in effect (as nearly as feasible) at
the time of the Conversion Event.
"Conversion Event" means the cessation of use of (i) a Foreign Currency both
by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the settlement
of transactions by public institutions of or within the European Union or
(iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established.
In the event the Company effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable because
of the occurrence of any Event of Default described in clause (v) of the first
paragraph under "--Events of Default; Limited Rights of Acceleration," the
amount of monies and/or Government Obligations deposited with the Trustee to
effect such covenant defeasance may not be sufficient to pay amounts due on
such Debt Securities at the time of any acceleration resulting from such Event
of Default. However, the Company would remain liable to make payment of such
amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions, if
any, permitting or restricting such defeasance or covenant defeasance with
respect to the Debt Securities of a particular series.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
16
<PAGE>
REGARDING THE TRUSTEE
The Trust Indenture Act of 1939 contains limitations on the rights of a
trustee, should it become a creditor of the Company, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of any such claims, as security or otherwise. The Trustee is permitted
to engage in other transactions with the Company and its subsidiaries from
time to time, provided that if the Trustee acquires any conflicting interest
it must eliminate such conflict upon the occurrence of an Event of Default
under the Indenture, or else resign.
SUBORDINATION
The payment of the principal of, premium, if any, and interest, if any, on
the Debt Securities will be subordinated, to the extent and in the manner set
forth in the Indenture, in right of payment to the prior payment in full of
all Senior Indebtedness (as defined below) which may at any time and from time
to time be outstanding. Unless otherwise provided in the applicable Prospectus
Supplement with respect to an issue of Debt Securities, in the event of any
distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company, (i) all Senior Indebtedness
shall first be paid in full, or such payment shall be provided for, before any
payment on account of the principal of, or premium, if any, or interest, if
any, on the Debt Securities is made, (ii) any payment or distribution of
assets of the Company to which the holders of the Debt Securities would be
entitled except for the subordination provisions of the Indenture shall be
paid by the liquidating trustee or other person making such distribution
directly to the holders of Senior Indebtedness or on their behalf, to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness, and (iii) in the event that,
notwithstanding the foregoing, any payment or distribution of assets of the
Company is received by the Trustee or the holders of any of the Debt
Securities before all Senior Indebtedness is paid in full, such payment or
distribution will be paid over to the holders of such Senior Indebtedness or
on their behalf for application to the payment of all such Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full or
such payment provided for, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness. Subject to the
payment in full of all Senior Indebtedness upon any such distribution of
assets of the Company, the holders of the Debt Securities will be subrogated
to the rights of the holders of the Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to
Senior Indebtedness until the principal of (and premium, if any) and interest,
if any, on the Debt Securities shall be paid in full.
By reason of such subordination, in the event of any distribution of assets
of the Company upon dissolution, winding up, liquidation, reorganization or
other similar proceedings of the Company, (i) holders of Senior Indebtedness
will be entitled to be paid in full before payments may be made on the Debt
Securities and the holders of Debt Securities will be required to pay over
their share of such distribution, to the extent made in respect of such Debt
Securities, to the holders of Senior Indebtedness until such Senior
Indebtedness is paid in full and (ii) creditors of the Company who are neither
holders of Debt Securities nor holders of Senior Indebtedness may recover
less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than the holders of the Debt Securities. Furthermore, such
subordination may result in a reduction or elimination of payments to the
holders of Debt Securities. The Indenture provides that the subordination
provisions thereof will not apply to any money and securities held in trust
pursuant to the discharge, defeasance and covenant defeasance provisions of
the Indenture (see "--Discharge, Defeasance and Covenant Defeasance" above).
The Indenture also provides that no payment on account of the principal of,
or premium, if any, sinking funds, if any, or interest, if any, on the Debt
Securities shall be made if there shall have occurred and be continuing (i) a
default in the payment when due of principal of, or premium, if any, sinking
funds, if any, or interest, if any on any Senior Indebtedness of the Company
and any applicable grace period with respect to such default shall have ended
without such default having been cured or waived or ceasing to exist or (ii)
an event of default with respect to any Senior Indebtedness of the Company
resulting in the acceleration of the maturity thereof without such
acceleration having been rescinded or annulled.
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<PAGE>
The Indenture defines "Senior Indebtedness" as (a) any liability of the
Company (1) for borrowed money or under any reimbursement obligation relating
to a letter of credit, surety bond or similar instrument, or (2) evidenced by
a bond, note, debenture or similar instrument, or (3) for obligations to pay
the deferred purchase price of property or services, except trade accounts
payable arising in the ordinary course of business, or (4) for the payment of
money relating to a capitalized lease obligation, or (5) for the payment of
money under any Swap Agreement; (b) any liability of others described in the
preceding clause (a) that the Company has guaranteed or that is otherwise its
legal liability; and (c) any deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above, unless, in
the instrument creating or evidencing any such liability referred to in clause
(a) or (b) above or any such deferral, renewal, extension or refunding
referred to in clause (c) above or pursuant to which the same is outstanding,
it is expressly provided that such liability, deferral, renewal, extension or
refunding is not senior or prior in right of payment to the Debt Securities or
ranks pari passu with or subordinate to the Debt Securities in right of
payment; and provided that the Debt Securities shall not constitute Senior
Indebtedness. The Indenture defines "Swap Agreement" as any commodity
contract, interest rate or currency swap agreement, cap, floor or collar
agreement, currency swap or forward contract or other similar agreement or
arrangement designed to protect against fluctuations in currency exchange
rates or interest rates.
The accompanying Prospectus Supplement or the information incorporated by
reference herein will set forth the approximate amount of Senior Indebtedness
outstanding as of a recent date. There are no limitations in the Indenture on
the issuance or incurrence of Senior Indebtedness of the Company.
PLAN OF DISTRIBUTION
The Company may sell Securities to one or more underwriters for public
offering and sale by them or may sell Securities through agents which solicit
or receive offers on behalf of the Company or through dealers or through a
combination of any such methods of sale, and the Company may also sell
Securities directly to investors. Any such underwriter or agent involved in
the offer and sale of Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company may, from time to time, authorize agents acting
on a best or reasonable efforts basis or other basis to solicit or receive
offers to purchase the Securities upon the terms and conditions as are set
forth in the applicable Prospectus Supplement. In connection with the sale of
Securities, underwriters or agents may be deemed to have received compensation
from the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of Securities for whom they may act
as agents. Underwriters may sell Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
Any compensation paid by the Company to underwriters or agents in connection
with the offering of Securities, and any discounts, concessions or commissions
allowed by underwriters to participating dealers, will be set forth in the
applicable Prospectus Supplement. Underwriters, dealers and agents
participating in a distribution of the Securities (including agents only
soliciting or receiving offers to purchase Securities on behalf of the
Company) may be deemed to be underwriters, and any discounts or commissions
received by them and any profit realized by them on resale of Securities may
be deemed to be underwriting discounts and commissions.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification against certain liabilities, including liabilities
under the Securities Act.
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<PAGE>
If so indicated in the applicable Prospectus Supplement, the Company may
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any
institutional purchaser under any such contract will not be subject to any
conditions except (i) the purchase by such institution of the Securities
covered by such contract shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which such institution is subject, and (ii) if
such Securities are being sold to underwriters, the Company shall have sold to
such underwriters the total principal amount of such Securities less the
principal amount thereof covered by delayed delivery contracts.
Certain of the underwriters, dealers or agents and their affiliates may
engage in transactions with and perform services for the Company in the
ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the offering made hereby will be
passed upon for the Company by Robert J. Flax, Esq., Executive Vice President,
General Counsel and Secretary of the Company, and by Silver, Freedman & Taff,
L.L.P., Washington, D.C. As of June 20, 1997, Mr. Flax owned approximately
3,540 shares of common stock of the Company, and held options to acquire
approximately 86,000 additional shares. Brown & Wood llp, San Francisco,
California, will act as counsel for any underwriters or agents.
EXPERTS
The consolidated financial statements and supplemental consolidating
schedules of Bay View Capital Corporation and its subsidiaries incorporated in
this Prospectus and in the Registration Statement by reference from the
Company's Annual Report on Form 10-K have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein and therein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing.
The consolidated financial statements of America First Eureka Holdings, Inc.
and Subsidiary as of December 31, 1996 and 1995, and for each of the years in
the three-year period ended December 31, 1996, have been incorporated by
reference herein and in the Registration Statement in reliance upon the report
of KPMG Peat Marwick LLP, independent auditors, incorporated by reference
herein and in the Registration Statement, and upon the authority of said firm
as experts in accounting and auditing.
19
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses (all of which will be paid by
the Company) to be incurred in connection with the registration and sale of
the Securities:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................... $ 45,455
Blue Sky fees and expenses...................................... 10,000
Rating agency fees.............................................. 200,000
Legal fees and expenses......................................... 95,000
Accounting fees and expenses.................................... 50,000
Trustees' fees and expenses..................................... 15,000
Printing and engraving.......................................... 100,000
Miscellaneous................................................... 9,545
--------
Total......................................................... $525,000
========
</TABLE>
All of the above amounts, other than the Securities and Exchange Commission
filing fee, are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by Section 102(b)(7) of the Delaware General Corporation Law,
the Company's Certificate of Incorporation eliminates to the fullest extent
permitted by Delaware law the personal liability of its directors to the
Company or its stockholders for monetary damages for any breach of fiduciary
duty as a director.
Section 9 of the Company's Certificate of Incorporation provides for
indemnification of any director or officer of the Company against any and all
expense, liability and loss (including attorneys' fees, judgments, fines and
amounts paid in settlement) reasonably incurred or suffered by him or her in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, to the
fullest extend authorized by Delaware law, subject to certain limitations set
forth in the Certificate of Incorporation. Section 9 also authorizes the
Company to purchase insurance on behalf of directors and officers against
liabilities incurred in their capacities as such.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation's board of directors to grant indemnity under certain
circumstances to directors and officers, when made, or threatened to be made,
parties to certain proceedings by reason of such status with the corporation,
against judgments, fines, settlements and expenses, including attorneys' fees.
In addition, under certain circumstances such persons may be indemnified
against expenses actually and reasonably incurred in defense of a proceeding
by or on behalf of the corporation. Similarly, the corporation, under certain
circumstances, is authorized to indemnify directors and officers of other
corporations or enterprises who are serving as such at the request of the
corporation, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a
proceeding by or in the name of such other corporation or enterprise.
Indemnification is permitted where such person (i) was acting in good faith,
(ii) was acting in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation or other corporation or
enterprise, as appropriate, (iii) with respect to a criminal proceeding, had
no reasonable cause to believe his or her conduct was unlawful, and (iv) was
not adjudged to be liable to the corporation or other corporation or
enterprise (unless the court where the proceeding was brought determines that
such person is fairly and reasonably entitled to indemnity).
II-1
<PAGE>
Unless ordered by a court, indemnification may be made only following a
determination that such indemnification is permissible because the person
being indemnified has met the requisite standard of conduct. Such
determination may be made (i) by the corporation's board of directors by a
majority vote of directors not at the time parties to such proceeding, even if
less than a quorum; or (ii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion; or
(iii) by the stockholders.
Section 145 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings upon the receipt of an undertaking by the
director or officer to repay such amount if it is ultimately determined that
he or she is not entitled to be indemnified by the corporation against such
expenses.
Under a directors' and officers' liability insurance policy, directors and
officers of the Company are insured against certain liabilities, including
certain liabilities under the Securities Act of 1933.
Reference is made to the form of Underwriting Agreement included or
incorporated by reference or to be included or incorporated by reference
herein as an exhibit to this Registration Statement for provisions regarding
indemnification of the Company's officers, directors and controlling persons
against certain liabilities.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1(a) Form of Underwriting Agreement(a)
4(a) Restated Certificate of Incorporation of the Company, together with
Certificate of Amendment of Restated Certificate of Incorporation(b)
4(b) By-Laws of the Company (incorporated by reference to the Company's
Current Report on Form 8-K filed on January 10, 1994 (File No. 0-17901))
4(c) Form of Subordinated Indenture(a)
4(d) Form of Subordinated Debt Security(b)
5(a) Opinion of Silver, Freedman & Taff, L.L.P. as to the validity of the
Securities(a)
12(a) Computation of Ratio of Earnings to Fixed Charges(b)
23(a) Consent of Deloitte & Touche LLP(a)
23(b) Consent of Silver, Freedman & Taff, L.L.P. (included in Exhibit 5(a))
23(c) Consent of KPMG Peat Marwick LLP(a)
24(a) Power of Attorney of certain officers and directors (included as part of
the signature pages hereof)(b)
25(a) Form T-1 Statement of Eligibility of the Trustee (to be filed or
incorporated by reference in connection with a particular offering of
Securities)
</TABLE>
- --------
(a) Filed herewith.
(b)Filed previously.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any acts or events arising after the effective date
of this registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in this registration statement.
Notwithstanding the foregoing,
II-2
<PAGE>
any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) under the Securities Act of 1933 if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; (iii) to include any material
information with respect to the plan of distribution not previously disclosed
in this registration statement or any material change to such information in
this registration statement; provided, however, that subparagraphs (i) and
(ii) do not apply if the information required to be included in a post-
effective amendment by those subparagraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby further undertakes that for the purpose 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 that is incorporated by reference in this
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 provisions described under Item 15 or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification by it is against public policy as
expressed in the Securities Act of 1933 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-3
<PAGE>
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 to the
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Mateo, State of California, on
June 25, 1997.
BAY VIEW CAPITAL CORPORATION
By: _________________________________
/s/ Robert J. Flax
Robert J. Flax
Executive Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities indicated on June 25, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ Edward H. Sondker* Director, President and Chief Executive
____________________________________ Officer (Principal Executive Officer)
Edward H. Sondker
/s/ David A. Heaberlin* Executive Vice President and Chief
____________________________________ Financial Officer (Principal Financial
David A. Heaberlin and Principal Accounting Officer)
/s/ John R. McKean*
____________________________________ Chairman and Director
John R. McKean
____________________________________ Director
Paula R. Collins
____________________________________ Director
Roger K. Easley
/s/ Thomas M. Foster*
____________________________________ Director
Thomas M. Foster
/s/ Richard J. Quinlan*
____________________________________ Director
Richard J. Quinlan
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
____________________________________ Director
Angelo J. Siracusa
/s/ W. Blake Winchell*
____________________________________ Director
W. Blake Winchell
/s/ Robert L. Witt*
____________________________________ Director
Robert L. Witt
</TABLE>
/s/ Robert J. Flax
By______________________________
Robert J. Flax
Attorney-in-Fact
II-5
<PAGE>
EXHIBIT 1(a)
================================================================================
$.,000,000
BAY VIEW CAPITAL CORPORATION
(a Delaware corporation)
.% Subordinated [Notes/Debentures] due .
PURCHASE AGREEMENT
------------------
Dated: ., .
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
<S> <C>
PURCHASE AGREEMENT................................................................ 1
SECTION 1. Representations and Warranties..................................... 3
------------------------------
(a) Representations and Warranties by the Company...................... 3
(i) Compliance with Registration Requirements................ 3
(ii) Incorporated Documents................................... 4
(iii) Independent Accountants.................................. 4
(iv) Financial Statements..................................... 4
(v) No Material Adverse Change in Business................... 4
(vi) Good Standing of the Company............................. 5
(vii) Good Standing of Subsidiaries............................ 5
(viii) Capitalization........................................... 5
(ix) Authorization of Agreement............................... 5
(x) Description of Securities................................ 6
(xi) Absence of Defaults and Conflicts........................ 6
(xii) Absence of Labor Dispute................................. 6
(xiii) Absence of Proceedings................................... 6
(xiv) Accuracy of Exhibits..................................... 7
(xv) Possession of Intellectual Property...................... 7
(xvi) Absence of Further Requirements.......................... 7
(xvii) Possession of Licenses and Permits....................... 7
(xviii) Title to Property........................................ 8
(xix) Compliance with Cuba Act................................. 8
(xx) Investment Company Act................................... 8
(xxi) Environmental Laws....................................... 8
(xxii) Indenture................................................ 9
(xxiii) Securities............................................... 9
(xxiv) Ranking of Securities.................................... 9
SECTION 2. Sale and Delivery to Underwriters; Closing......................... 10
------------------------------------------
(a) Securities......................................................... 10
(b) Payment............................................................ 10
(c) Denominations; Registration........................................ 10
SECTION 3. Covenants of the Company........................................... 11
------------------------
(a) Compliance with Securities Regulations and Commission
Requests.......................................................... 11
(b) Filing of Amendments............................................... 11
(c) Delivery of Registration Statements................................ 11
(d) Delivery of Prospectuses........................................... 12
(e) Continued Compliance with Securities Laws.......................... 12
(f) Blue Sky Qualifications............................................ 12
(g) Rule 158........................................................... 13
(h) Use of Proceeds.................................................... 13
(i) Listing............................................................ 13
(j) Lock-up Period..................................................... 13
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
(k) Reporting Requirements............................................. 13
SECTION 4. Payment of Expenses................................................ 13
-------------------
(a) Expenses........................................................... 13
(b) Termination of Agreement........................................... 14
SECTION 5. Conditions of Underwriters' Obligations............................ 14
---------------------------------------
(a) Effectiveness of Registration Statement............................ 14
(b) Opinion of General Counsel for the Company......................... 14
(c) Opinion of Outside Counsel for the Company......................... 15
(d) Opinion of Counsel for Underwriters................................ 15
(e) Officers' Certificate.............................................. 15
(f) Accountant's Comfort Letter........................................ 15
(g) Bring-down Comfort Letter.......................................... 16
(h) Rating Requirement................................................. 16
(i) Approval of Listing................................................ 16
(j) No Objection....................................................... 16
(k) Additional Documents............................................... 16
(l) Termination of Agreement........................................... 16
SECTION 6. Indemnification.................................................... 16
---------------
(a) Indemnification of Underwriters.................................... 16
(b) Indemnification of Company, Directors and Officers................. 17
(c) Actions against Parties; Notification.............................. 18
(d) Settlement without Consent if Failure to Reimburse................. 18
SECTION 7. Contribution....................................................... 18
------------
SECTION 8. Representations, Warranties and Agreements to Survive Delivery..... 20
--------------------------------------------------------------
SECTION 9. Termination of Agreement........................................... 20
------------------------
(a) Termination; General............................................... 20
(b) Liabilities........................................................ 20
SECTION 10. Default by One or More of the Underwriters......................... 20
------------------------------------------
SECTION 11. Notices............................................................ 21
-------
SECTION 12. Parties............................................................ 21
-------
SECTION 13. GOVERNING LAW AND TIME............................................. 22
----------------------
SECTION 14. Effect of Headings................................................. 22
------------------
SCHEDULES
Schedule A - List of Underwriters....................................... Sch A-1
Schedule B - Pricing Information........................................ Sch B-1
Schedule C - List of Subsidiaries....................................... Sch C-1
EXHIBITS
Exhibit A - Form of Opinion of General Counsel.............................. A-1
Exhibit B - Form of Opinion of Outside Counsel.............................. B-1
</TABLE>
ii
<PAGE>
$.,000,000
BAY VIEW CAPITAL CORPORATION
(a Delaware corporation)
.% Subordinated [Notes/Debentures] due .
PURCHASE AGREEMENT
------------------
., .
[Name(s) and Address(es)
of Underwriter(s)]
Ladies and Gentlemen:
Bay View Capital Corporation, a Delaware corporation (the "Company"),
confirms its agreement with . and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom . are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of $.,000,000
aggregate principal amount of the Company's .% Subordinated [Notes/Debentures]
due . (the "Securities"). The Securities are to be issued pursuant to an
indenture dated as of ., . (the "Indenture") between the Company and ., as
trustee (the "Trustee").
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-.) covering the
registration of, among other things, the Securities under the Securities Act of
1933, as amended (the "1933 Act"), and has filed such amendments thereto, if
any, as may have been required to the date thereof. Promptly after execution and
delivery of this Agreement, the Company will either (i) prepare the Prospectus
Supplement (as defined in Section 4(l) hereof) and file the Prospectus
Supplement and, if required by Rule 424(b) (as defined below) the related
Prospectus dated ., . (the "Base Prospectus"), in accordance with the provisions
of Rule 415 ("Rule 415") of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected
<PAGE>
to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file
a term sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and
Rule 424(b); the Company has previously provided to you the information
(financial and other) to be set forth in the Prospectus Supplement or Term
Sheet, as the case may be. The information included in such Term Sheet that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time the Term
Sheet is filed with the Commission pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each prospectus, together with any
related prospectus supplement, used before such registration statement became
effective, and each prospectus, together with the related prospectus supplement,
that omitted the Rule 434 Information or that was captioned "Subject to
Completion" that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called, together with the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, a "preliminary prospectus." Such registration statement, as amended and
including the exhibits thereto, schedules, if any, and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, at the time it became effective and, if applicable, including the Rule 434
Information, is herein called the "Original Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and the
Original Registration Statement and any Rule 462(b) Registration Statement are
herein referred to collectively as the "Registration Statement." The Base
Prospectus and the Prospectus Supplement, including the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities, are herein called, collectively, the "Prospectus." If Rule
434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus supplement dated ., 1997, together with the Base Prospectus and the
Term Sheet and all documents incorporated by reference therein pursuant to Item
12 of Form S-3, and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "described," "disclosed," "contained," "included" or
"stated" in the Registration Statement, any preliminary prospectus or the
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated or deemed to be incorporated by reference in the Registration
Statement, any preliminary prospectus or the Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), which is incorporated or
deemed to be incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
2
<PAGE>
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter as of the date hereof and as of the Closing
Time referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. The Company meets
-----------------------------------------
the requirements for use of Form S-3 under the 1933 Act and also meets the
requirements for use of Form S-3 as such standards were in effect
immediately prior to October 21, 1992. Each of the Registration Statement
and any Rule 462(b) Registration Statement has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. The Indenture has been duly qualified
under the 1939 Act and the Trustee has duly filed with the Commission a
Statement of Eligibility on Form T-1 (a "Form T-1") as part of the
Registration Statement.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, at the date hereof and at the Closing Time, the Registration
Statement, any Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations"), and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date hereof and at the Closing Time, neither the
Prospectus nor any amendments or supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
If Rule 434 is used, the Company will comply with the requirements of Rule
434. The representations and warranties in this paragraph shall not apply
to statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through . expressly for use in the
Registration Statement or Prospectus.
Each preliminary prospectus, each prospectus and the Prospectus filed
as part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act and the
1933 Act Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
3
<PAGE>
(ii) Incorporated Documents. The documents incorporated or deemed to
----------------------
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued, at the
date hereof and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who certified the
-----------------------
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
--------------------
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration
Statement. [The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.] The Company's ratios of earnings
to fixed charges (actual and, if any, pro forma) included in the Prospectus
have been calculated in compliance with Item 503(d) of Regulation S-K of
the Commission.
(v) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse Effect"),
whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) except for regular quarterly dividends
4
<PAGE>
on the Common Stock, par value $.01 per share, of the Company (the "Common
Stock") in amounts per share that are consistent with past practice, there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement, the Indenture and the Securities; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the Company
-----------------------------
has been duly organized and is validly existing as a corporation (or, in
the case of Bay View Bank (the "Bank"), as a federally chartered savings
bank organized in stock form) in good standing under the laws of the
jurisdiction of its incorporation, has power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect; except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock of each such subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any subsidiary was issued in
violation of the preemptive or similar rights of any security holder of
such subsidiary. The only subsidiaries of the Company are the subsidiaries
listed on Schedule C hereto.
(viii) Capitalization. The authorized, issued and outstanding
--------------
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus [or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus]). The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights
of any security holder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Company.
5
<PAGE>
(x) Description of Securities. The Securities and the Indenture
-------------------------
conform and will conform to all statements relating thereto contained in
the Prospectus and such descriptions conform to the rights set forth in the
instruments defining the same; and the issuance of the Securities is not
subject to the preemptive or other similar rights of any security holder of
the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company nor any
---------------------------------
of its subsidiaries is in violation of its charter or by-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated herein and therein (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to any Agreement and
Instrument, except for such conflicts, breaches or defaults or liens,
charges or encumbrances that, individually or in the aggregate, would not
result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any of its subsidiaries.
(xii) Absence of Labor Dispute. No labor dispute with the employees
------------------------
of the Company or any subsidiary of the Company exists or, to the knowledge
of the Company, is imminent; and the Company is not aware of any existing
or imminent labor disturbance which may reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any subsidiary
of the Company or any of their respective officers, directors or employees
which is required to be disclosed in the Registration
6
<PAGE>
Statement (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in this
Agreement, the Indenture or the Securities or the performance by the
Company of its obligations under this Agreement, the Indenture or the
Securities; the aggregate of all pending legal or governmental proceedings
to which the Company, any subsidiary or any officer, director or employee
of the Company or any subsidiary is a party or of which any of the
respective property or assets of the Company or any of its subsidiaries is
the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
--------------------
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xv) Possession of Intellectual Property. The Company and its
-----------------------------------
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the execution, delivery or performance by the
Company of its obligations under this Agreement, the Indenture or the
Securities, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the other transactions
contemplated by this Agreement, the Indenture or the Securities, except
such as have been already made or obtained under the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations or as may be
required under state securities laws.
(xvii) Possession of Licenses and Permits. The Company and its
----------------------------------
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them and the Company and
its subsidiaries are in compliance with the terms and conditions of all
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such Governmental Licenses, except where the failure so to possess or
comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not, individually or in the aggregate, have a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries have
-----------------
good and marketable title to all real property and improvements owned by
the Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Prospectus or (b) do not, singly or
in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; and all of the leases and subleases
material to the business of the Company and its subsidiaries, considered as
one enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus, are in full force and effect,
and neither the Company nor any subsidiary has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of
the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or
such subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xix) Compliance with Cuba Act. The Company has complied with, and
------------------------
is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(xx) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxi) Environmental Laws. Except as described in the Registration
------------------
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants,
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contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) there are no events
or circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxii) Indenture. The Indenture has been duly authorized by the
---------
Company and duly qualified under the 1939 Act and, at the Closing Time,
will have been duly executed and delivered by the Company and will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditor's rights
generally or by general equitable principles.
(xxiii) Securities. The Securities have been duly authorized and, at
----------
the Closing Time, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor specified in this Agreement,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles, and will be
entitled to the benefits of the Indenture.
(xxiv) Ranking of Securities. The Securities rank and will rank on a
---------------------
parity with all unsecured subordinated indebtedness of the Company that is
outstanding on the date hereof or that may be incurred hereafter, and will
be subordinated in right of payment to all Senior Indebtedness (as defined
in the Prospectus) of the Company that is outstanding on the date hereof or
that may be incurred hereafter.
(xxv) The Company is duly registered as a savings and loan holding
company under Section 10 of the Home Owners Loan Act of 1933, as amended.
(xxvi) The Bank is a federally chartered savings bank duly organized
in stock form; the Bank is a member in good standing of the Federal Home
Loan Bank of San Francisco; the deposit accounts in the Bank are insured by
the Savings Association Insurance Fund (the "SAIF") of the Federal Deposit
Insurance Corporation (the "FDIC") to the full extent provided by the
National Housing Act, as amended, and the rules and
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regulations of the FDIC thereunder; and the Company has been authorized by
the Office of Thrift Supervision (the "OTS") to conduct the business of a
federal savings bank.
(xxvii) California Thrift & Loan, a California corporation ("CTL"),
is an industrial loan company whose deposit accounts are insured by the
FDIC to the full extent permitted under the rules and regulations of the
FDIC.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the aggregate principal amount of Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of ., or at such
other place as shall be agreed upon by the Representatives and the Company, at
9:00 A.M. (New York City time) on the third (fourth, if the pricing occurs after
4:30 P.M. (New York City time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to an account designated by the Company, against delivery to the
Representatives for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. ., individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities shall be
in such denominations and registered in such names as the Representatives may
request in writing at least one full business day before the Closing Time. The
certificates for the Securities will be made available for examination and
packaging by the Representatives in The City of New York not later than 10:00
A.M. (New York City time) on the business day prior to the Closing Time.
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SECTION 3. Covenants of the Company. The Company covenants with each
------------------------
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A or Rule 434, as applicable, and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus, any Term Sheet or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of
prospectus or term sheet, as the case may be, transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus or term sheet, as
the case may be. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters,
without charge, as many signed and conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and signed
copies of all consents and certificates of experts as the Representatives
or counsel for the Underwriters may reasonably request. If applicable, the
copies of the Registration Statement and each amendment thereto furnished
to the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, if any, except
to the extent permitted by Regulation S-T.
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(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. If applicable,
the Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, if any, except to the
extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement and in the Prospectus.
If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that
the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply
with such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters
may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of not
less than one year from the date hereof; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
date hereof.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
security holders as soon
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<PAGE>
as practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
[(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.]
(j) Lock-up Period. During a period of . days from the date of this
Agreement, the Company will not and will not, cause or permit any of its
subsidiaries to, without the Representatives' prior written consent, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of,
any Securities or any debt securities of the Company or any of its
subsidiaries similar to the Securities, or any securities convertible into
or exchangeable or exercisable for any Securities or any such similar
securities, except for Securities sold to the Underwriters pursuant to this
Agreement.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(l) If applicable, immediately following the execution of this
Agreement, the Company will prepare a prospectus supplement, dated the date
hereof (the "Prospectus Supplement"), containing the terms of the
Securities, the plan of distribution thereof and such other information as
may be required by the 1933 Act or the 1933 Act Regulations or as the
Representatives and the Company deem appropriate, and will file or transmit
for filing with the Commission in accordance with Rule 424(b), the
Prospectus Supplement and, if required by Rule 424(b), the Base Prospectus.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
-------------------
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, word processing, copying, distribution,
printing and delivery to the Underwriters of this Agreement, the Indenture, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, word processing, copying, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any transfer taxes or duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors and the fees and disbursements of the
accountants for any other entity whose financial statements are included or
incorporated by reference in the Registration Statement or Prospectus, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the
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preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheets and of the Prospectus and any amendments or supplements thereto,
(vii) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of
any transfer agent or registrar for the Securities and (ix) if applicable, the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriters in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Securities, [(x) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange;] (xi) fees and
disbursements of the Trustee, including, if required, the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities, (xii) any fees payable in connection with the rating of the
Securities and (xiii) and the fees and expenses of any depositary in connection
with holding the Securities in book-entry form.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) or 9(a)(v) hereof, the Company shall reimburse the Underwriters for all
of their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. The Prospectus Supplement and, if required by the 1933 Act
or the 1933 Act Regulations, the Base Prospectus shall have been filed with
the Commission in accordance with Rule 424(b) or, if the Company has
elected to rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 434 and Rule 424(b), and before the
Closing Date the Company shall have provided evidence satisfactory to the
Representatives of such timely filing.
(b) Opinion of General Counsel for the Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Robert J. Flax, Esq., Executive Vice President, General
Counsel and Secretary of the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of
such opinion for each of the other Underwriters, to the effect set forth in
Exhibit A hereto and to such further effect as counsel to the Underwriters
may reasonably request pursuant to Section 5(k).
14
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(c) Opinion of Outside Counsel for the Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Silver, Freedman & Taff, L.L.P., counsel for the Company,
in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such opinion for each of the
other Underwriters, to the effect set forth in Exhibit B hereto and to such
further effect as counsel to the Underwriters may reasonably request
pursuant to Section 5(k).
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Brown & Wood llp, counsel for the Underwriters, with
respect to the matters set forth in clauses . of Exhibit A hereto and
paragraphs, ., . and . and the penultimate paragraph of Exhibit B hereto.
In giving such opinion such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New York, the
federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Deloitte & Touche
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter
for each of the other Underwriters, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Deloitte & Touche LLP a letter, dated as of
Closing Time, to the
15
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effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to
Closing Time.
(h) Rating Requirement. At the date of this Agreement and at the
Closing Time, the Securities shall be rated at least . by Moody's
Investor's Service Inc., . by Standard & Poor's Corporation [and . by Duff
& Phelps], and the Company shall have delivered to the Representatives a
letter from each such rating agency, or other evidence satisfactory to the
Representatives, confirming that the Securities have such ratings.
[(i) Approval of Listing. At the date of this Agreement and at the
Closing Time, the Securities shall have been approved for listing on the
New York Stock Exchange, subject only to official notice of issuance.]
[(j) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.]
(k) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 434 Information, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material
16
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fact included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by .), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through . expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 434 Information, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through . expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the
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case of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by ., and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the
18
<PAGE>
Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus (or, if Rule 434 is used,
the corresponding location on the Term Sheet) bear to the aggregate initial
public offering price of the Securities as set forth on such cover (or
corresponding location on the Term Sheet, as the case may be).
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any
19
<PAGE>
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the Nasdaq
National Market or the National Association of Securities Dealers National
Market System, or if trading generally on the American Stock Exchange or the New
York Stock Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal, California or New York
authorities, or (v) if since the date of this Agreement, there has occurred a
downgrading in the rating assigned to the Securities or any of the Company's
other debt securities or preferred stock by any nationally recognized securities
rating agency, or such securities rating agency has publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of the Securities or any of the Company's other debt securities or
preferred stock.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time to purchase the Securities which it
or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
20
<PAGE>
(a) if the aggregate principal amount of the Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities, each of
the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of the Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities, this
Agreement shall terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representatives or the Company shall have the right
to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at ., attention of .; and
notices to the Company shall be directed to it at Bay View Capital Corporation,
1840 Gateway Drive, San Mateo, California 94404, attention of Robert Flax, Esq.,
Executive Vice President, General Counsel and Secretary.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND TO BE PERFORMED IN SAID STATE. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
21
<PAGE>
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
22
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
BAY VIEW CAPITAL CORPORATION
By
----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
.
By
---------------------------------
Authorized Signatory
For themselves and as Representatives
of the [other] Underwriters named in
Schedule A hereto.
23
<PAGE>
SCHEDULE A
Principal
Amount of
Name of Underwriter Securities
- ---------------------- ----------
. .........................................................
----------
Total................. $.,000,000
==========
Sch A-1
<PAGE>
SCHEDULE B
1. The initial public offering price for the Securities shall be .% of
the principal amount thereof, [plus accrued interest from ., .].
2. Underwriting discounts and commissions for the Securities shall be .%
of the principal amount thereof. Accordingly, the purchase price to be paid for
the Securities by the several Underwriters shall be .% of the principal amount
thereof [plus accrued interest from ., .].
Sch B-1
<PAGE>
SCHEDULE C
List of subsidiaries
Sch C-1
<PAGE>
Exhibit A
FORM OF OPINION OF GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement, the Indenture and the Securities.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual" under
the caption "Capitalization" (except for subsequent issuances, if any, pursuant
to reservations, agreements or employee benefit plans referred to in the
Prospectus [or pursuant to the exercise of convertible securities or options
referred to in the Prospectus]); the shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and are fully
paid and non-assessable; and none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other similar rights of
any security holder of the Company.
(v) Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation (or, in the case of the Bank, as a federally
chartered savings bank organized in stock form) in good standing under the laws
of the jurisdiction of its incorporation, has power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each subsidiary of
the Company has been duly authorized and validly issued, is fully paid and non-
assessable and, to the best of our knowledge, is owned by the Company, directly
or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding shares of
capital stock of any subsidiary of the Company was issued in violation of the
preemptive or similar rights of any security holder of such subsidiary.
(vi) To the best of my knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation to which the Company or
any subsidiary of the Company or any of their respective officers, directors or
employees is a party, or to which the
A-1
<PAGE>
property of the Company or any subsidiary of the Company, is subject, before or
brought by any court or governmental agency or body, domestic or foreign, which
might reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated in the
Purchase Agreement or the performance by the Company of its obligations
thereunder.
(vii) The information in the Company's Annual Report on Form 10-K for
the year December 31, 199. under the captions "Business--Supervision and
Regulation," "Legal Proceedings," and "." [and in the Company's proxy statement
dated ., 199. under the caption ".,"] to the extent that it constitutes matters
of law, summaries of legal matters, or legal proceedings, summaries of
instruments or agreements, or legal conclusions, has been reviewed by me and is
correct in all material respects.
(viii) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(ix) All descriptions in the Prospectus of contracts and other
documents to which the Company or its subsidiaries are a party are accurate in
all material respects; to the best of my knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(x) To the best of my knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and no default by the
Company or any subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act and the
1933 Act Regulations and the 1939 Act and the 1939 Act Regulations, which have
been obtained, or as may be required under the securities or blue sky laws of
the various states, as to which I express no opinion) is necessary or required
in connection with the due authorization, execution and delivery of the Purchase
Agreement, the Indenture or the Securities or for the offering, issuance, sale
or delivery of the Securities.
(xii) The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Purchase Agreement and the Registration
Statement (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use Of Proceeds") and compliance by the Company with its
obligations under the Purchase Agreement, the Indenture and the Securities, do
not and will not,
A-2
<PAGE>
whether with or without the giving of notice or lapse of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined in the
Purchase Agreement) under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument, known to me,
to which the Company or any subsidiary is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or by-laws
of the Company or any subsidiary, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to me, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of their respective properties, assets
or operations.
(xiii) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(xiv) The Securities have been duly authorized by the Company and,
when duly executed by the Company and authenticated by the Trustee in the manner
provided in the Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee) and delivered against payment of the
purchase price therefor specified in the Purchase Agreement, will constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditor's rights generally or by general equitable
principles, and will be entitled to the benefits of the Indenture.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any amendment thereto, including the Rule 434
Information (if applicable), (except for financial statements and schedules and
other financial data included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which I make no statement), at the time such
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which I need make
no statement), at the date of the Prospectus Supplement or the Term Sheet (as
the case may be), at the time any such amended or supplemented prospectus was
issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
A-3
<PAGE>
In rendering such opinion, such counsel may state that such opinion is
limited to matters arising under the laws of the State of California, [the State
of New York], the General Corporation Law of the State of Delaware and the
federal laws of the United States of America. In rendering such opinion, such
counsel may rely [(A) as to matters involving the application of the laws of .
upon the opinion of ., special counsel to the Company (which opinion shall be
dated and furnished to the Representatives at the Closing Time, shall be
satisfactory in form and substance to counsel for the Underwriters and shall
expressly state that the Underwriters may rely on such opinion as if it were
addressed to them), provided that . shall state in their opinion that they
believe that they and the Underwriters are justified in relying upon such
opinion, and (B)], as to matters of fact (but not as to legal conclusions), to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
A-4
<PAGE>
Exhibit B
FORM OF OPINION OF OUTSIDE COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
(ii) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(iii) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(iv) The Registration Statement (including any Rule 462(b)
Registration Statement and the Rule 434 Information, as applicable), the
Prospectus, and each amendment or supplement to the Registration Statement or
the Prospectus (in each case excluding the documents incorporated by reference
therein, the financial statements and supporting schedules included or
incorporated by reference therein or omitted therefrom and the Trustee's
Statement of Eligibility on Form T-1 (the "Form T-1"), as to which no opinion
need be rendered), as of their respective effective or issue dates (and, if the
Company has relied upon Rule 434, the Registration Statement at the time the
Term Sheet was filed with the Commission), complied as to form in all material
respects with the applicable requirements of the 1933 Act and the 1933 Act
Regulations.
(v) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which we express no opinion), when they were filed with
the Commission, complied as to form in all material respects with the applicable
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
(vi) To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the Company or
any subsidiary of the Company or any officer, director or employee of the
Company or any subsidiary of the Company is a party, or to which the property of
the Company or any subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets thereof or
the consummation
B-1
<PAGE>
of the transactions contemplated in the Purchase Agreement or the performance by
the Company of its obligations thereunder.
(vii) The information in the Prospectus under ".", ".", "Description
of [Notes/Debentures]," "Description of Debt Securities" and ".", the
information in the Registration Statement under Item 15, the information in the
Company's Annual Report on Form 10-K for the year December 31, 199. under the
captions "Business--Supervision and Regulation" and ".," and the information in
the Company's proxy statement dated ., 199. under the caption ".," to the extent
that it constitutes matters of law, summaries of legal matters, or legal
proceedings, summaries of the Company's charter or bylaws, summaries of the
Indenture, the Securities or other instruments or agreements, or legal
conclusions, has been reviewed by us and is correct in all material respects.
(viii) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(ix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act and the
1933 Act Regulations and the 1939 Act and the 1939 Act Regulations, which have
been obtained, or as may be required under the securities or blue sky laws of
the various states, as to which we express no opinion) is necessary or required
in connection with the due authorization, execution and delivery of the Purchase
Agreement, the Indenture or the Securities or for the offering, issuance, sale
or delivery of the Securities.
(x) The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Purchase Agreement and the Registration
Statement (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use Of Proceeds") and compliance by the Company with its
obligations under the Purchase Agreement, the Indenture and the Securities, do
not and will not, whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default or Repayment Event
(as defined in the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect) [A REFERENCE TO SPECIFIC DEBT INSTRUMENTS MAY BE ADDED], nor
will such action result in any violation of the provisions of the charter or by-
laws of the Company or any subsidiary, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of their respective properties, assets
or operations.
B-2
<PAGE>
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
(xii) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(xiii) The Securities have been duly authorized by the Company and,
when duly executed by the Company and authenticated by the Trustee in the manner
provided in the Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee) and delivered against payment of the
purchase price therefor specified in the Purchase Agreement, will constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditor's rights generally or by general equitable
principles, and will be entitled to the benefits of the Indenture.
(xiv) The Indenture has been qualified under the 1939 Act.
(xv) The Company is duly registered as a savings and loan holding
company under Section 10 of the Home Owners Loan Act of 1933, as amended.
(xvi) The Bank is a federally chartered savings bank duly organized
in stock form and is validly existing in good standing under the laws of the
United States and has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus; the Bank
is a member in good standing of the Federal Home Loan Bank of San Francisco; the
deposit accounts in the Bank are insured by the Savings Association Insurance
Fund of the FDIC to the full extent provided by the National Housing Act, as
amended, and the rules and regulations of the FDIC thereunder; and the
Association has been authorized by the Office of Thrift Supervision to conduct
the business of a federal savings bank.
(xvii) CTL is an industrial loan company whose deposit accounts are
insured by the FDIC to the full extent permitted under the rules and regulations
of the FDIC.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, including the Rule 434
Information (if applicable), (except for financial statements and schedules and
other financial data included or incorporated by reference therein or omitted
therefrom or the Form T-1, as to which we make no statement), at the time such
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we
B-3
<PAGE>
make no statement), at the date of the Prospectus Supplement or Term Sheet (as
the case may be), at the time any such amended or supplemented prospectus was
issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may state that such opinion is
limited to matters arising under the laws of the State of California, the State
of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States of America. In rendering such opinion, such
counsel may rely [(A) as to matters involving the application of the laws of .
upon the opinion of ., special counsel to the Company (which opinion shall be
dated and furnished to the Representatives at the Closing Time, shall be
satisfactory in form and substance to counsel for the Underwriters and shall
expressly state that the Underwriters may rely on such opinion as if it were
addressed to them), provided that . shall state in their opinion that they
believe that they and the Underwriters are justified in relying upon such
opinion, and (B)], as to matters of fact (but not as to legal conclusions), to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
B-4
<PAGE>
Exhibit 4(C)
================================================================================
BAY VIEW CAPITAL CORPORATION,
Issuer
to
.,
Trustee
---------------
INDENTURE
---------------
Dated as of .
Subordinated Debt Securities
================================================================================
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture
Section
<S> <C>
(S)310(a)(1) 607
(a)(2) 607
(b) 608
(S)312(a) 701
(b) 702
(c) 702
(S)313(a) 703
(b)(2) 703
(c) 703
(d) 703
(S)314(a) 704
(c)(1) 102
(c)(2) 102
(e) 102
(f) 102
(S)316(a) (last sentence) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
(S)317(a)(1) 503
(a)(2) 504
(b) 1003
(S)318(a) 108
</TABLE>
- ---------------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
Recitals ...................................................................... 1
<CAPTION>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<C> <S> <C>
Section 101. Definitions.................................................... 2
Section 102. Compliance Certificates and Opinions........................... 11
Section 103. Form of Documents Delivered to Trustee......................... 12
Section 104. Acts of Holders................................................ 12
Section 105. Notices, etc. to Trustee and Company........................... 14
Section 106. Notice to Holders of Securities; Waiver........................ 14
Section 107. Language of Notices............................................ 15
Section 108. Conflict with Trust Indenture Act.............................. 15
Section 109. Effect of Headings and Table of Contents....................... 15
Section 110. Successors and Assigns......................................... 15
Section 111. Separability Clause............................................ 16
Section 112. Benefits of Indenture.......................................... 16
Section 113. Governing Law.................................................. 16
Section 114. Legal Holidays................................................. 16
Section 115. Counterparts................................................... 16
Section 116. Judgment Currency.............................................. 16
Section 117. Immunity of Stockholders, Directors, Officers and Agents of the
Company........................................................ 17
<CAPTION>
ARTICLE TWO
SECURITIES FORMS
<S> <C> <C>
Section 201. Forms Generally................................................ 17
Section 202. Form of Trustee's Certificate of Authentication................ 18
Section 203. Securities in Global Form...................................... 18
<CAPTION>
ARTICLE THREE
THE SECURITIES
<S> <C> <C>
Section 301. Amount Unlimited; Issuable in Series........................... 19
Section 302. Currency; Denominations........................................ 23
Section 303. Execution, Authentication, Delivery and Dating................. 23
Section 304. Temporary Securities........................................... 25
Section 305. Registration, Transfer and Exchange............................ 25
Section 306. Mutilated, Destroyed, Lost and Stolen Securities............... 29
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved................. 30
Section 308. Persons Deemed Owners............................................... 32
Section 309. Cancellation........................................................ 32
Section 310. Computation of Interest............................................. 33
<CAPTION>
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
<C> <S> <C>
Section 401. Satisfaction and Discharge.......................................... 33
Section 402. Defeasance and Covenant Defeasance.................................. 34
Section 403. Application of Trust Money.......................................... 38
Section 404. Effect on Subordination Provisions.................................. 39
<CAPTION>
ARTICLE FIVE
REMEDIES
<C> <S> <C>
Section 501. Events of Default................................................... 39
Section 502. Acceleration of Maturity; Rescission and Annulment.................. 41
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee..... 42
Section 504. Trustee May File Proofs of Claim.................................... 42
Section 505. Trustee May Enforce Claims without Possession of Securities or
Coupons........................................................... 43
Section 506. Application of Money Collected...................................... 44
Section 507. Limitations on Suits................................................ 44
Section 508. Unconditional Right of Holders to Receive Principal and any Premium,
Interest and Additional Amounts................................... 45
Section 509. Restoration of Rights and Remedies.................................. 45
Section 510. Rights and Remedies Cumulative...................................... 45
Section 511. Delay or Omission Not Waiver........................................ 46
Section 512. Control by Holders of Securities.................................... 46
Section 513. Waiver of Past Defaults............................................. 46
Section 514. Waiver of Stay or Extension Laws.................................... 47
Section 515. Undertaking for Costs............................................... 47
<CAPTION>
ARTICLE SIX
THE TRUSTEE
<C> <S> <C>
Section 601. Certain Rights of Trustee........................................... 47
Section 602. Notice of Defaults.................................................. 48
Section 603. Not Responsible for Recitals or Issuance of Securities.............. 49
Section 604. May Hold Securities................................................. 49
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
Section 605. Money Held in Trust......................................... 49
Section 606. Compensation and Reimbursement.............................. 49
Section 607. Corporate Trustee Required; Eligibility..................... 50
Section 608. Resignation and Removal; Appointment of Successor........... 50
Section 609. Acceptance of Appointment by Successor...................... 52
Section 610. Merger, Conversion, Consolidation or Succession to Business. 53
Section 611. Appointment of Authenticating Agent......................... 53
<CAPTION>
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
<C> <S> <C>
Section 701. Company to Furnish Trustee Names and Addresses of Holders... 55
Section 702. Preservation of Information; Communications to Holders...... 56
Section 703. Reports by Trustee.......................................... 56
Section 704. Reports by Company.......................................... 56
<CAPTION>
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
<C> <S> <C>
Section 801. Company May Consolidate, Etc., Only on Certain Terms........ 57
Section 802. Successor Person Substituted for Company.................... 58
<CAPTION>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
<C> <S> <C>
Section 901. Supplemental Indentures without Consent of Holders.......... 58
Section 902. Supplemental Indentures with Consent of Holders............. 59
Section 903. Execution of Supplemental Indentures........................ 61
Section 904. Effect of Supplemental Indentures........................... 61
Section 905. Reference in Securities to Supplemental Indentures.......... 61
Section 906. Effect on Senior Indebtedness............................... 61
Section 907. Conformity with Trust Indenture Act......................... 61
<CAPTION>
ARTICLE TEN
COVENANTS
<C> <S> <C>
Section 1001. Payment of Principal, Premium, Interest and Additional
Amounts................................................... 62
Section 1002. Maintenance of Office or Agency............................. 62
Section 1003. Money for Securities Payments to Be Held in Trust........... 63
Section 1004. Additional Amounts.......................................... 64
Section 1005. Corporate Existence......................................... 65
</TABLE>
iii
<PAGE>
<TABLE>
<C> <S> <C>
Section 1006. Company Statement as to Compliance................................. 65
Section 1007. Waiver of Certain Covenants........................................ 66
<CAPTION>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<C> <S> <C>
Section 1101. Applicability of Article........................................... 66
Section 1102. Election to Redeem; Notice to Trustee.............................. 66
Section 1103. Selection by Trustee of Securities to be Redeemed.................. 66
Section 1104. Notice of Redemption............................................... 67
Section 1105. Deposit of Redemption Price........................................ 69
Section 1106. Securities Payable on Redemption Date.............................. 69
Section 1107. Securities Redeemed in Part........................................ 70
<CAPTION>
ARTICLE TWELVE
SINKING FUNDS
<C> <S> <C>
Section 1201. Applicability of Article........................................... 70
Section 1202. Satisfaction of Sinking Fund Payments with Securities.............. 71
Section 1203. Redemption of Securities for Sinking Fund.......................... 71
<CAPTION>
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
<C> <S> <C>
Section 1301. Applicability of Article........................................... 72
<CAPTION>
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
<C> <S> <C>
Section 1401. Applicability of Article........................................... 72
<CAPTION>
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
<C> <S> <C>
Section 1501. Purposes for Which Meetings May Be Called........................... 73
Section 1502. Call, Notice and Place of Meetings.................................. 73
Section 1503. Persons Entitled to Vote at Meetings................................ 73
Section 1504. Quorum; Action...................................................... 74
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings. 75
Section 1506. Counting Votes and Recording Action of Meetings..................... 75
</TABLE>
iv
<PAGE>
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
<TABLE>
<CAPTION>
<C> <S> <C>
Section 1601. Agreement to Subordinate............................................ 76
Section 1602. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities... 76
Section 1603. No Payment on Securities in Event of Default on Senior Indebtedness. 78
Section 1604. Payments on Securities Permitted.................................... 78
Section 1605. Authorization of Holders to Trustee to Effect Subordination......... 79
Section 1606. Notices to Trustee.................................................. 79
Section 1607. Trustee as Holder of Senior Indebtedness............................ 79
Section 1608. Modifications of Terms of Senior Indebtedness....................... 80
Section 1609. Reliance on Judicial Order or Certificate of Liquidating Agent...... 80
</TABLE>
v
<PAGE>
INDENTURE, dated as of ., 1997 (the "Indenture"), among BAY VIEW CAPITAL
CORPORATION, a corporation duly organized and existing under the laws of State
of Delaware (hereinafter called the "Company"), having its principal executive
office located at 1840 Gateway Drive, San Mateo, California 94404, and ., a
banking association duly organized and existing under the laws of . (hereinafter
called the "Trustee").
Recitals
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its subordinated unsecured
debentures, notes or other evidences of Indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as herein defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
or of any series thereof and any Coupons (as herein defined) as follows:
1
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the terms
"generally accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act", when used with respect to any Holders, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required hereby
or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes, assessments or other governmental
charges imposed on Holders specified therein and which are owing to such
Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; and the term "Affiliated" has a meaning
correlative to the foregoing. For the purposes of this definition, "control",
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
2
<PAGE>
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 611 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bank" means BayView Bank, a federal savings bank.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person, and any other obligor upon the Securities.
3
<PAGE>
"Company Request" and "Company Order" mean, respectively, a written request
or order, as the case may be, signed in the name of the Company by the Chairman
of the Board of Directors, 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.
"Conversion Event" means the cessation of use of (i) a Foreign Currency both
by the government of the country or the confederation which issued such Foreign
Currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means either (A) the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of original execution
of this Indenture is located at ., [or (B) for purposes of Sections 1002,
"Corporate Trust Office" means the principal corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York at which at any
particular time its corporate trust business shall be administered in The City
of New York, which office at the date of original execution of this Indenture is
located at c/o .; provided that, for purposes of any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document or notice provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with, the Trustee, whether pursuant to Section
105, Article Sixteen or otherwise, "Corporate Trust Office" means any office
referred to in clause (A) or (B) of this paragraph.]
"Corporation" includes corporations, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a Security by
Standard & Poor's Corporation, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of legal tender for
payment of public or private debts in the United States of America.
4
<PAGE>
"ECU" means the European Currency Units as defined and revised from time to
time by the Council of the European Community.
"European Monetary System" means the European Monetary System established by
the Resolution of December 5, 1978 of the Council of the European Community.
"European Union" means the European Community, the European Coal and Steel
Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such government.
"GAAP" means such accounting principles as are generally accepted in the
United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the other government or governments in the
confederation which issued the Foreign Currency in which the principal of or any
premium or interest on the relevant Security or any Additional Amounts in
respect thereof shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of such government or
governments or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America or such
other government or governments, in each case where the timely payment or
payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a 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 Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder", in the case of any Registered Security, means the Person in whose
name such Security is registered in the Security Register and, in the case of
any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security
5
<PAGE>
and any Coupon appertaining thereto established pursuant to Section 301 (as such
terms and provisions may be amended pursuant to the applicable provisions
hereof).
"Independent Public Accountants" means accountants or a firm of accountants
that, with respect to the Company and any other obligor under the Securities or
the Coupons, are independent public accountants within the meaning of the
Securities Act of 1933, as amended, and the rules and regulations promulgated by
the Commission thereunder, who may be the independent public accountants
regularly retained by the Company or who may be other independent public
accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", with respect to any Original Issue Discount Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holidays" has the meaning specified in Section 114.
"Major Bank Subsidiary" means (i) the Bank and any successor to all or
substantially all of the business of the Bank, in each case so long as it shall
be a Subsidiary of the Company and (ii) any Significant Subsidiary of the
Company which is a bank, trust company, savings bank, savings and loan
association, savings association or other banking or thrift institution.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes a Redemption Date
for such Security.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
6
<PAGE>
"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, that complies
with the requirements of Section 314(e) of the Trust Indenture Act and is
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to this
Indenture which provides for declaration of an amount less than the principal
face amount thereof to be due and payable upon acceleration pursuant to Section
502.
"Outstanding", when used with respect to any Securities, means, as of the
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant
hereto (other than pursuant to Section 402) with the Trustee or
any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and
any Coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except
to the extent provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof satisfactory
to it that such Security is held by a bona fide purchaser in
whose hands such Security is a valid obligation of the Company;
and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities, if the terms of
such Security provide for such conversion or exchange pursuant to
Section 301;
7
<PAGE>
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee knows to
be so owned shall be so disregarded. Securities so owned which shall have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee (A) the pledgee's right so to act with
respect to such Securities and (B) that the pledgee is not the Company or any
other obligor upon the Securities or any Coupons appertaining thereto or an
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or places
where the principal of, or any premium or interest on, or any Additional Amounts
with respect to such Security are payable as provided in or pursuant to this
Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
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"Redemption Date", with respect to any Security or portion thereof to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to be
redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to Section 201
which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered Security on
any Interest Payment Date therefor means the date, if any, specified in or
pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer or employee of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" means any note or notes, bond or bonds, debenture
or debentures, or any other evidences of indebtedness, as the case may be,
authenticated and delivered under this Indenture; provided, however, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means (a) any liability of the Company (1) for
borrowed money or under any reimbursement obligation relating to a letter of
credit, surety bond or similar instrument, or (2) evidenced by a bond, note,
debenture or similar instrument, or (3) for obligations to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, or (4) for the payment of money relating to a
capitalized lease obligation, or (5) for the payment of money under any Swap
Agreement; (b) any liability of others described in the preceding clause (a)
that the Company has guaranteed or that is otherwise its legal liability; and
(c) any deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above, unless, in the instrument creating or
evidencing any such liability referred to in clause (a) or (b) above or any such
deferral, renewal, extension or refunding referred to in clause (c) above or
pursuant to which the same is outstanding, it is expressly provided that such
liability, deferral, renewal, extension or refunding is not senior or prior in
right of payment to the Securities or ranks pari passu with or subordinate
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to the Securities in right of payment; and provided that the Securities shall
not constitute Senior Indebtedness.
"Significant Subsidiary" means, with respect to any Person, any Subsidiary
of such Person which is a "significant subsidiary" as defined in Rule 1-02 (w)
of Regulation S-X promulgated under the Securities Act of 1933, as amended (as
in effect on the date of the Indenture), but substituting 50 percent for 10
percent in each place that 10 percent appears in such Rule.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subsidiary" means, with respect to any Person (the "Subject Person"), any
corporation or other Person at least a majority of the equity ownership
interests or Voting Stock of which is at the time owned, directly or indirectly,
by the Subject Person and/or one or more other Subsidiaries of the Subject
Person.
"Swap Agreement" means any commodity contract, interest rate or currency
swap agreement, cap, floor or collar agreement, currency swap or forward
contract or other similar agreement or arrangement designed to protect against
fluctuations in currency exchange rates or interest rates.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, and
any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended or
replaced from time to time or as supplemented from time to time by rules or
regulations adopted by the Commission under or in furtherance of the purposes of
such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean each Person who is then a Trustee
hereunder; provided, however, that if at any time there is more than one such
Person, "Trustee" shall mean each such Person and as used with respect to the
Securities of any series shall mean the Trustee with respect to the Securities
of such series.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
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"United States Alien", except as otherwise provided in or pursuant to this
Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"United States Person" means, unless otherwise specified with respect to any
Debt Securities pursuant to Section 301, any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States, any estate the income of which is subject
to United States federal income taxation regardless of its source, or any trust
whose administration is subject to the primary supervision of a United States
court and which has one or more United States fiduciaries who have the authority
to control all substantial decisions of the trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, unless otherwise provided with respect to any Security,
any successor to such Person. If at any time there is more than one such
Person, "U.S. Depository" or "Depository" shall mean, with respect to any
Securities, the qualifying entity which has been appointed with respect to such
Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means, with respect to any Person, any class or classes or
series or series of capital stock of such Person pursuant to which the holders
thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not, at the time, capital stock of any other class
or classes or series or series shall have, or might have, voting power by reason
of the happening of any contingency).
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this Indenture,
upon any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company 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 or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by or pursuant to this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
made, given or taken by Holders of Securities of such series may, alternatively,
be embodied in and evidenced by the record of Holders of Securities of such
series voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
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Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S. Depository
that is a Holder of a global Security, may make, give or take, by a proxy or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture or the Securities to be made, given or taken by Holders, and a U.S.
Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such U.S. Depository's standing instructions and customary practices.
(2) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer Securities
held by any Person, and the date of the commencement and the date of the
termination of holding the same, may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by any trust company,
bank, banker or other depositary reasonably acceptable to the Company, wherever
situated, if such certificate shall be deemed by the Company and the Trustee to
be satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Company and the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or
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other Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or consent
by the Holders of Registered Securities shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
Act is made upon such Security.
Section 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to the attention of its Treasurer, at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not earlier
than the earliest date and the second such publication not later than the
latest date prescribed for the giving of such notice.
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In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties under
any required provision of the Trust Indenture Act imposed hereon by Section
318(c) thereof, such required provision shall control.
Section 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
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Section 111. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent and their successors hereunder, the holders of Senior
Indebtedness and the Holders of Securities or Coupons, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
State.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that specifically states
that such provision shall apply in lieu hereof) payment need not be made at such
Place of Payment on such date but such payment may be made on the next
succeeding day that is a Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or at the Stated
Maturity or Maturity, and no interest shall accrue on the amount payable on such
date or at such time for the period from and after such Interest Payment Date,
Stated Maturity or Maturity, as the case may be, to the next succeeding Business
Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding
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that on which a final unappealable judgment is given and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with clause (a)), in any currency other
than the Required Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or executive
order to be closed. The provisions of this Section 116 shall not be applicable
with respect to any payment due on a Security which is payable in Dollars.
Section 117. Immunity of Stockholders, Directors, Officers and Agents of
the Company.
No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any past, present or future stockholder, employee,
officer or director, as such, of the Company or of any predecessor or successor,
either directly or through the Company or any predecessor or successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issue of the
Securities.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or permanent
global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officer of the Company executing such Security or Coupon as evidenced by the
execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons.
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Definitive Securities and definitive Coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officer of the Company executing such Securities or Coupons,
as evidenced by the execution of such Securities or Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall be
in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
.
as Trustee
By ____________________________
Authorized Signatory
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in global form. If Securities
of a series shall be issuable in temporary or permanent global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 303 or 304 with respect
thereto. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall be
in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise specified
in or pursuant to this Indenture or any Securities, payment of principal of, any
premium and interest on, and any Additional Amounts in respect of any Security
in temporary or permanent global form shall be made to the Person or Persons
specified therein.
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Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 301.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one
or more series. The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Sixteen.
With respect to any Securities to be authenticated and delivered hereunder,
there shall be established in or pursuant to a Board Resolution and set forth in
an Officers' Certificate, or established in one or more indentures supplemental
hereto prior to the issuance of any Securities of a series,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities
of such title or the Securities of such series which may be authenticated
and delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu
of, other Securities of such series pursuant to Section 304, 305, 306, 905
or 1107, upon repayment in part of any Security of such series pursuant to
Article Thirteen or upon surrender in part of any Security for conversion
or exchange into Common Stock or other securities pursuant to its terms);
(3) if such Securities are to be issuable as Registered Securities,
as Bearer Securities or alternatively as Bearer Securities and Registered
Securities, and whether the Bearer Securities are to be issuable with
Coupons, without Coupons or both, and any restrictions applicable to the
offer, sale or delivery of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered Securities and
vice versa;
(4) if any of such Securities are to be issuable in global form, when
any of such Securities are to be issuable in global form and (i) whether
such Securities are to be issued in temporary or permanent global form or
both, (ii) whether beneficial owners of interests in any such global
Security may exchange such interests for Securities of the
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same series and of like tenor and of any authorized form and denomination,
and the circumstances under which any such exchanges may occur, if other
than in the manner specified in Section 305, and (iii) the name of the
Depository or the U.S. Depository, as the case may be, with respect to any
global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities, the date as of which any such Bearer Security shall be dated
(if other than the date of original issuance of the first of such
Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest Payment
Date therefor prior to the exchange, if any, of such temporary Bearer
Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by which
such date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear interest,
if any, or the method or methods, if any, by which such rate or rates are
to be determined, the date or dates, if any, from which such interest shall
accrue or the method or methods, if any, by which such date or dates are to
be determined, the Interest Payment Dates, if any, on which such interest
shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date, whether and
under what circumstances Additional Amounts on such Securities or any of
them shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the principal of, any premium
and interest on or any Additional Amounts with respect to such Securities
shall be payable, any of such Securities that are Registered Securities may
be surrendered for registration of transfer or exchange, any of such
Securities may be surrendered for conversion or exchange and notices or
demands to or upon the Company in respect of such Securities and this
Indenture may be served;
(10) whether any of such Securities are to be redeemable at the option
of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part,
at the option of the Company;
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(11) if the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at the
option of any Holder thereof and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the other
terms and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in which
any of such Securities that are Bearer Securities shall be issuable if
other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible into
shares of Common Stock and/or exchangeable for other securities, and if so,
the terms and conditions upon which such Securities will be so convertible
or exchangeable, and any deletions from or modifications or additions to
this Indenture to permit or to facilitate the issuance of such convertible
or exchangeable Securities or the administration thereof;
(14) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment of
the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities are to be payable, at the
election of the Company or a Holder thereof or otherwise, in Dollars or in
a Foreign Currency other than that in which such Securities are stated to
be payable, the date or dates on which, the period or periods within which,
and the other terms and conditions upon which, such election may be made,
and the time and manner of determining the exchange rate between the
Currency in which such Securities are stated to be payable and the Currency
in which such Securities or any of them are to be paid pursuant to such
election, and any deletions from or modifications of or additions to the
terms of this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may
be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
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(18) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to any of such
Securities (whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein), and
whether Section 1007 shall be applicable with respect to any such
additional covenants;
(19) if either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall not be applicable to
the Securities of such series, or any covenants in addition to those
specified in Section 402(3) relating to the Securities of such series which
shall be subject to covenant defeasance, and any deletions from, or
modifications or additions to, the provisions of Article Four in respect of
the Securities of such series;
(20) if any of such Securities are to be issuable upon the exercise of
warrants, and the time, manner and place for such Securities to be
authenticated and delivered;
(21) if any of such Securities are to be issuable in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the form and
terms of such certificates, documents or conditions;
(22) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying
Agent or Authenticating Agent with respect to such Securities;
(23) the Person to whom any interest on any Registered Security of
such series shall be payable, if other than the Person in whose name the
Registered Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer Security
of such series shall be payable, if other than upon presentation and
surrender of the Coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest payable on a
temporary global Security will be paid if other than in the manner provided
in this Indenture; and
(24) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining to
Bearer Securities of such series shall be substantially identical except as to
Currency of payments due thereunder, denomination and the rate of interest, or
method of determining the rate of interest, if any, Maturity, and the date from
which interest, if any, shall accrue and except as may otherwise be provided by
the Company in or pursuant to the Board Resolution and set forth in the
Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental
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indenture (telephonic instructions to be promptly confirmed in writing by such
person) and that such persons are authorized to determine, consistent with such
Officers' Certificate or any applicable supplemental indenture, such terms and
conditions of the Securities of such series as are specified in such Officers'
Certificate or supplemental indenture. All Securities of any one series need
not be issued at the same time and, unless otherwise so provided by the Company
as contemplated by this Section 301, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.
If any of the terms of the Securities of any series shall be established by
action taken by or pursuant to a Board Resolution, the Board Resolution shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities shall be payable in Dollars. Unless otherwise provided in or
pursuant to this Indenture, Registered Securities denominated in Dollars shall
be issuable in registered form without Coupons in denominations of $1,000 and
any integral multiple thereof, and the Bearer Securities denominated in Dollars
shall be issuable in the denomination of $5,000. Securities not denominated in
Dollars shall be issuable in such denominations as are established with respect
to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman of
the Board of Directors, its President or one of its Vice Presidents under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. Coupons shall be executed on behalf of the Company by
the Chairman of the Board of Directors, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company. The signature of any of
these officers on the Securities or any Coupons appertaining thereto may be
manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under
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this Indenture in relation to such Securities and any Coupons appertaining
thereto, the Trustee shall be entitled to receive, and (subject to Sections
315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in
relying upon, an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons, if
any, have been established in conformity with Sections 201 and 301 of this
Indenture;
(b) all conditions precedent set forth in Sections 201, 301 and 303 of
this Indenture to the authentication and delivery of such Securities and
Coupons, if any, appertaining thereto have been complied with and that such
Securities, and Coupons, when completed by appropriate insertions (if
applicable), executed and attested under the Company's corporate seal by
duly authorized officers of the Company, delivered by duly authorized
officers of the Company to the Trustee for authentication pursuant to this
Indenture, and authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer or other similar laws relating to or affecting
creditors' rights generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law).
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel at the time of issuance
of each Security, but such opinion, with such modifications as counsel shall
deem appropriate, shall be delivered at or before the time of issuance of the
first Security of such series. After any such first delivery, any separate
request by the Company that the Trustee authenticate Securities of such series
for original issue will be deemed to be a certification by the Company that all
conditions precedent provided for in this Indenture relating to authentication
and delivery of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for in Section 202 or 611 executed by or on behalf of the Trustee
or by the Authenticating Agent by the manual signature of one of its authorized
officers. Such certificate upon any Security shall be conclusive evidence, and
the
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only evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306 or 307 or as may otherwise be
provided in or pursuant to this Indenture, the Trustee shall not authenticate
and deliver any Bearer Security unless all Coupons appertaining thereto then
matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute
and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities are
issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for
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each series of Securities. The Company shall have the right to remove and
replace from time to time the Security Registrar for any series of Securities;
provided that no such removal or replacement shall be effective until a
successor Security Registrar with respect to such series of Securities shall
have been appointed by the Company and shall have accepted such appointment. In
the event that the Trustee shall not be or shall cease to be Security Registrar
with respect to a series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. There shall be only
one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at any Office or Agency for such series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series denominated as authorized in or pursuant to this Indenture, of a like
aggregate principal amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities of
any series, at the option of the Holder, Bearer Securities of such series may be
exchanged for Registered Securities of such series containing identical terms,
denominated as authorized in or pursuant to this Indenture and in the same
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered
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without the Coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such Coupon is so surrendered with such
Bearer Security, such Coupon shall be returned to the Person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, shall
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but shall be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities of
any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by the
immediately preceding two paragraphs, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or pursuant
to this Indenture, any global Security shall be exchangeable for definitive
Securities only if (i) the Depository for such Securities notifies the Company
that it is unwilling or unable to continue as a Depository for the global
Security or at any time the Depository for such Securities ceases to be a
clearing agency registered as such under the Securities Exchange Act of 1934, as
amended, and no successor Depository for such Securities shall have been
appointed within 90 days of such notification or of the Company becoming aware
of the Depository's ceasing to be so registered, as the case may be, (ii) the
Company, in its sole discretion, executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (iii)
an Event of Default has occurred and is continuing with respect to such
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such global Security shall be
surrendered from time to time by the Depository as shall be specified in the
Company Order with respect thereto, and in accordance with instructions given to
the Trustee and the Depository, as the case may be (which instructions shall be
in writing but need not be contained in or accompanied by an Officers'
Certificate or be accompanied by an Opinion of Counsel), as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or in part, for definitive
Securities as described above without charge. The Trustee shall authenticate
and make available for delivery, in exchange for each portion of such
surrendered global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such global Security to be exchanged, which (unless such
Securities are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security
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shall be issuable only in the form in which the Securities are issuable, as
provided in or pursuant to this Indenture) shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the Depository, but subject to the satisfaction of any
certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities of the same
series to be redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository, or such other Depository referred to above in
accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a global Security
after the close of business at the Office or Agency for such Security where such
exchange occurs on or after (i) any Regular Record Date for such Security and
before the opening of business at such Office or Agency on the next Interest
Payment Date, or (ii) any Special Record Date for such Security and before the
opening of business at such Office or Agency on the related proposed date for
payment of interest or Defaulted Interest, as the case may be, interest shall
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but shall be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such global
Security shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities or repayment of Securities at the Holder's
option, 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, 905 or 1107, upon repayment in part of any Registered
Security pursuant to Article Thirteen, or upon surrender in part of any
Registered Security for conversion or exchange into Common Stock or other
securities pursuant to its terms, in each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities
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of like tenor and the same series under Section 1103 and ending at the close of
business on the day of such selection, or (ii) to register the transfer of or
exchange any Registered Security, or portion thereof, so selected for
redemption, except in the case of any Registered Security to be redeemed in
part, the portion thereof not to be redeemed, or (iii) to exchange any Bearer
Security so selected for redemption except, to the extent provided with respect
to such Bearer Security, that such Bearer Security may be exchanged for a
Registered Security of like tenor and the same series, provided that such
Registered Security shall be simultaneously surrendered for redemption with
written instruction for payment consistent with the provisions of this Indenture
or (iv) to issue, register the transfer of or exchange any Security which, in
accordance with its terms, has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case any
mutilated, destroyed, lost or stolen Security or Coupon has become or is about
to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or Coupon; provided, however, that payment of
principal of, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed
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in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen Coupon appertains
shall constitute a separate obligation of the Company, whether or not the
destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, shall (to the
extent lawful) be exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or Coupons.
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name such Security (or one or
more Predecessor Securities) is registered as of the close of business on the
Regular Record Date for such interest. Unless otherwise provided in or pursuant
to this Indenture, in case a Bearer Security is surrendered in exchange for a
Registered Security after the close of business at an Office or Agency for such
Security on any Regular Record Date therefor and before the opening of business
at such Office or Agency on the next succeeding Interest Payment Date therefor,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date and interest shall not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
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such Registered 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 on or prior to the date of the proposed payment, such
money when so deposited to be held in trust for the benefit of the Person
entitled to such Defaulted Interest as in this Clause provided. 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 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 the Holder of such
Registered Security (or a Predecessor Security thereof) at his address as
it appears in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name and
at the expense of the Company cause a similar notice to be published at
least once in an Authorized Newspaper of general circulation in the Borough
of Manhattan, The City of New York, but such publication shall not be a
condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Person in whose name such Registered Security
(or a Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security is
surrendered at the Office or Agency for such Security in exchange for a
Registered Security after the close of business at such Office or Agency on
any Special Record Date and before the opening of business at such Office
or Agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to
such Defaulted Interest and Defaulted Interest shall not be payable on such
proposed date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States.
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Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 305 and
307) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
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Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the
Securities of any series, 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 OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture shall
cease to be of further effect with respect to any series of Securities specified
in such Company Order and any Coupons appertaining thereto, and the Trustee, on
receipt of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange
for Registered Securities of such series and maturing after such exchange
whose surrender is not required or has been waived as provided in Section
305, (ii) Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
306, (iii) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date whose surrender
has been waived as provided in Section 1106, and (iv) Securities and
Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or (ii)
below, if applicable, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the
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giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such
purpose, money in the Currency in which such Securities are payable in an
amount sufficient to pay and discharge the entire indebtedness on such
Securities and any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation, including the principal of, any premium
and interest on, and any Additional Amounts with respect to, such
Securities and any Coupons appertaining thereto, to the date of such
deposit (in the case of Securities which have become due and payable) or to
the Maturity thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 606 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 305, 306, 403, 404, 1002 and 1003, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 1004, and with respect to any rights to convert or exchange such
Securities into Common Stock or other securities, shall survive.
Section 402. Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i) defeasance of
the Securities of or within a series under clause (2) of this Section 402 or
(ii) covenant defeasance of the Securities of or within a series under clause
(3) of this Section 402 shall not be applicable with respect to the Securities
of such series, then such provisions, together with the other provisions of this
Section 402 (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any Coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Securities and any
Coupons appertaining thereto, elect to have Section 402(2) or
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Section 402(3) be applied to such Outstanding Securities and any Coupons
appertaining thereto upon compliance with the conditions set forth below in this
Section 402.
(2) Upon the Company's exercise of the above option applicable to this
Section 402(2) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 402 and the other Sections of this Indenture referred
to in clauses (i) and (ii) of this paragraph, and to have satisfied all of its
other obligations under such Securities and any Coupons appertaining thereto and
this Indenture insofar as such Securities and any Coupons appertaining thereto
are concerned (and the Trustee, at the expense of the Company , shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any Coupons appertaining thereto to
receive, solely from the trust fund described in clause (4) of this Section 402
and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities and any Coupons appertaining
thereto when such payments are due, and any rights of such Holder to convert or
exchange such Securities into Common Stock or other securities, (ii) the
obligations of the Company and the Trustee with respect to such Securities under
Sections 305, 306, 1002 and 1003, with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 1004, and with
respect to any rights to convert or exchange such Securities into Common Stock
or other securities, (iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and (iv) this Section 402 and Sections 403 and 404. The
Company may exercise its option under this Section 402(2) notwithstanding the
prior exercise of its option under Section 402(3) with respect to such
Securities and any Coupons appertaining thereto.
(3) Upon the Company's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
shall be released from its obligations under Section 1005 (other than the
Company's obligation to preserve and keep in full force and effect its corporate
existence pursuant to Section 1005) and, to the extent specified pursuant to
Section 301, any other covenant applicable to such Securities, with respect to
such Outstanding Securities and any Coupons appertaining thereto on and after
the date the conditions set forth in clause (4) of this Section 402 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
Coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with any such
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any Coupons appertaining thereto, the Company
may omit to comply with, and shall have no liability in respect of, any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such
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other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under
Section 501(4) or 501(7) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and Coupons
appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or
(3) of this Section 402 to any Outstanding Securities of or within a series and
any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Section 402 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining thereto are
then specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto (determined
on the basis of the Currency in which such Securities and Coupons
appertaining thereto are then specified as payable at Stated Maturity or,
if such defeasance or covenant defeasance is to be effected in compliance
with subsection (f) below, on the relevant Redemption Date, as the case may
be) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and premium, if
any) and interest, if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on, such
Outstanding Securities and any Coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest or the
applicable Redemption Date, as the case may be, and (z) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities and any Coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any
Major Bank Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and
any Coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit,
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and, solely in the case of defeasance under Section 402(2), no Event of
Default with respect to such Securities and any Coupons appertaining
thereto under clause (5) or (6) of Section 501 or event which with notice
or lapse of time or both would become an Event of Default with respect to
such Securities and any Coupons appertaining thereto under clause (5) or
(6) of Section 501 shall have occurred and be continuing at any time during
the period ending on the 91st day after the date of such deposit (it being
understood that this condition to defeasance under Section 402(2) shall not
be deemed satisfied until the expiration of such period).
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding Securities and
any Coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance or covenant
defeasance, as the case may be, and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance or covenant defeasance, as the case may
be, had not occurred.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance, as the case may be,
under this Indenture have been complied with.
(f) If the monies or Government Obligations or combination thereof, as
the case may be, deposited under clause (a) above are sufficient to pay the
principal of, and premium, if any, and interest, if any, on such Securities
provided such Securities are redeemed on a particular Redemption Date, the
Company shall have given the Trustee irrevocable instructions to redeem
such Securities on such date and to provide notice of such redemption to
Holders as provided in or pursuant to this Indenture.
(g) Notwithstanding any other provisions of this Indenture to the
contrary, unless otherwise provided pursuant to Section 301 with respect to
the Securities of such series, defeasance and covenant defeasance of the
Securities of such series may only be effected during the last year prior
to the final Stated Maturity of the principal of such Securities.
(h) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee --collectively for purposes of this Section 402(5) and
Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of
any Outstanding Securities of any series and any Coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
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provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent (other
than the Company acting as its own Paying Agent) as the Trustee may determine,
to the Holders of such Securities and any Coupons appertaining thereto of all
sums due and to become due thereon in respect of principal (and premium, if any)
and interest and Additional Amounts, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4) of this Section 402 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations deposited with the Trustee pursuant to Section 401 or
402 shall be held in trust and applied by it, in accordance with the provisions
of the Securities, the Coupons and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled
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thereto, of the principal, premium, interest and Additional Amounts for whose
payment such money has or Government Obligations have been deposited with or
received by the Trustee; but such money and Government Obligations need not be
segregated from other funds except to the extent required by law.
Section 404. Effect on Subordination Provisions.
Unless otherwise expressly provided pursuant to Section 301 with respect to
the Securities of any series, the provisions for subordination of the Securities
set forth in Article Sixteen hereof are hereby expressly made subject to the
provisions for satisfaction and discharge set forth in Section 401 hereof and
the provisions for defeasance and covenant defeasance set forth in Section 402
hereof and, anything herein to the contrary notwithstanding, upon the
effectiveness of such satisfaction and discharge pursuant to Section 401 or any
such defeasance or covenant defeasance pursuant to Section 402 with respect to
the Securities of any series, such Securities shall thereupon cease to be so
subordinated and shall no longer be subject to the provisions of Article Sixteen
hereof and, without limitation to the foregoing, all moneys, Government
Obligations and other securities or property deposited with the Trustee (or
other qualifying trustee) in trust in connection with such satisfaction and
discharge, defeasance or covenant defeasance, as the case may be, and all
proceeds therefrom may be applied to pay the principal of, premium, if any, and
interest, if any, on, and Additional Amounts, if any, with respect to the
Securities of such series as and when the same shall become due and payable
notwithstanding the provisions of Article Sixteen.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest on, or any Additional Amounts
payable in respect of any interest on, any Security of such series or any Coupon
appertaining thereto when such interest or such Additional Amounts, as the case
may be, become due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of any principal of or premium, if any, on, or
any Additional Amounts payable in respect of any principal of or premium, if
any, on, any Security of such series when due upon Maturity; or
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(3) default in deposit of any sinking fund payment when due with respect to
any Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture or any Security of such series (other than a
covenant or warranty for which the consequences of breach or nonperformance are
addressed elsewhere in this Section 501 or a covenant or warranty which has
expressly been included in this Indenture or a Security of that series, whether
or not by means of a supplemental indenture, solely for the benefit of
Securities of a series other than such series), and continuance of such default
or breach for a period of 30 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 aggregate principal amount of the Outstanding
Securities of such series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry by a court or, in the case of any Major Bank Subsidiary, any
court or supervisory authority having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Major Bank
Subsidiary 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 Major Bank 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
Major Bank Subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, conservator, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Major Bank Subsidiary or of any
substantial part of the property of the Company or any Major Bank Subsidiary, or
ordering the winding up or liquidation of the affairs of the Company or any
Major Bank Subsidiary, and the continuance of any such decree or order for
relief unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company or any Major Bank Subsidiary 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 Major Bank Subsidiary to the entry of a decree or order for
relief in respect of the Company or any Major Bank Subsidiary 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 Major Bank Subsidiary,
or the filing by the Company or any Major Bank Subsidiary of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company or any Major Bank Subsidiary to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, conservator, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Major Bank Subsidiary or any substantial
part of the property of the Company or any Major Bank Subsidiary, or the making
by the Company or any Major Bank Subsidiary of an assignment for the benefit of
creditors, or the admission by the Company or any Major Bank Subsidiary in
writing of the inability of the Company or any Major Bank Subsidiary to pay its
debts generally as they become due, or the taking of corporate action by the
Company or any Major Bank Subsidiary in furtherance of any such action, or the
appointment of the Federal Deposit Insurance
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Corporation or any successor thereto by any court or by the Office of Thrift
Supervision or any successor thereto to act as conservator, liquidator, receiver
or other legal custodian for any Major Bank Subsidiary; or
(7) any other Event of Default provided in or pursuant to this Indenture
with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default as described in Section 501(5) or 501(6) occurs and
is continuing, then either the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of any series may declare the
principal of all the Securities of such series, or such lesser amount as may be
provided for in the Securities of such series, and accrued and unpaid interest,
if any, thereon to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or such lesser amount, as the case may be, and such
accrued and unpaid interest shall become immediately due and payable.
At any time after Securities of any series have been accelerated and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
(a) all overdue installments of any interest on any Securities of such
series and any Coupons appertaining thereto which have become due otherwise
then by such declaration of acceleration and any Additional Amounts with
respect thereto,
(b) the principal of and any premium on any Securities of such series
which have become due otherwise than by such declaration of acceleration
and any Additional Amounts with respect thereto and, to the extent
permitted by applicable law, interest thereon at the rate or rates borne by
or provided for in such Securities,
(c) to the extent permitted by applicable law, interest upon
installments of any interest, if any, which have become due otherwise then
by such declaration of acceleration and any Additional Amounts with respect
thereto at the rate or rates borne by or provided for in such Securities,
and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee under
Section 606; and
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(2) all Events of Default under Sections 501(5) and 501(6) with respect to
Securities of such series shall 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, or any Additional
Amounts payable in respect of any interest on, any Security or any Coupon
appertaining thereto when such interest or Additional Amounts, as the case may
be, shall have become due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of any principal of or premium, if any,
on, or any Additional Amounts payable in respect of any principal of or premium,
if any, on, any Security at its Maturity, or
(3) default is made in the deposit of any sinking fund payment when due,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent permitted by applicable law, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
of money as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due to the Trustee
under Section 606.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
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Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and any Coupons appertaining thereto and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of Securities
or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit
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of each and every Holder of a Security or Coupon in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of amounts then due and unpaid to the holders
of Senior Indebtedness, to the extent required by Article Sixteen;
THIRD: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on such Securities
and Coupons for principal and any premium, interest and Additional Amounts,
respectively;
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining thereto
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee 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
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(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or Coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of, any premium, if any, and (subject to
Sections 305 and 307) interest, if any, on, and any Additional Amounts with
respect to such Security or such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
at the option of such Holder if provided in or pursuant to this Indenture, on
the date such repayment is due) and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
To the extent permitted by applicable law and except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or Coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to each and every
Holder of a Security or a Coupon is intended to be exclusive of any other right
or remedy, and every right and remedy, to the extent permitted by law, shall be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not, to the
extent permitted by law, prevent the concurrent assertion or employment of any
other appropriate right or remedy.
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Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall,
to the extent permitted by applicable law, impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to any
Holder of a Security or a Coupon may, to the extent permitted by applicable law,
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest on, or
any Additional Amounts with respect to, any Security of such series or any
Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
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. Waiver of Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company expressly waives (to the extent
that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 515. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock or other securities in accordance with
its terms.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (in each
case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence shall be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon 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,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts or any sinking fund installment
with respect to, any Security of such
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series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the best interest of the Holders of
Securities and Coupons of such series; and provided, further, that in the case
of any default of the character specified in Section 501(4) or 501(7) with
respect to Securities of such series, 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 with respect to Securities of
such series.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
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(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 the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any claim
or liability in connection with the exercise or performance of any of their
powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, or premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501(5) or 501(6) is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law.
"Trustee" for purposes of this Section 606 shall include any predecessor Trustee
but the negligence or bad faith of any Trustee shall not affect the rights of
any other Trustee under this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
(1) There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000 subject to supervision or examination by Federal or state authority.
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 608. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a
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successor Trustee required by Section 609 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed upon
it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or
any Holder of a Security of such series who has been a bona fide Holder of
a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Company or any such
Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 609. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
609, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the
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manner required by Section 609, any Holder of a Security who has been a bona
fide Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(6) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect to
all Securities, such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties hereunder of the retiring Trustee; but, on the request of the Company or
such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and, subject to
Section 1003, shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part
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of any other Trustee hereunder, and, upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
have no further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates other than as hereinafter
expressly set forth, and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges with respect to the Securities of that or those series to
which the appointment of such successor relates and subject to Section 1003,
shall duly assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject to
its claim, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to the
Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment, or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
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Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
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If an Authenticating Agent is appointed with respect to one or more series
of Securities pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
.,
As Trustee
By _____________________________
As Authenticating Agent
By_____________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not later
than . and . of the year or upon such other dates as are set forth in or
pursuant to the Board Resolution or indenture supplemental hereto
authorizing such series, a list, in each case in such form as the Trustee
may reasonably require, of the names and addresses of Holders as of the
applicable date, and
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(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to
Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company, the Trustee,
any Paying Agent or any Security Registrar shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 312(c) of the Trust Indenture
Act, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with the first May
15 following the first issuance of Securities pursuant to Section 301, 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 May 15 with respect to any of the events specified in said
Sections 313(a) and 313(b)(2) which may have occurred since the later of the
immediately preceding May 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a) of
the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner and
to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and
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regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company,
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, in any transaction or series of related
transactions, consolidate with or merge into any Person or sell, assign,
transfer, lease or otherwise convey all or substantially all its properties and
assets to any Person, unless:
(1) either the Company shall be the continuing Person, or the successor
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or which acquires by sale, assignment, transfer, lease or
other conveyance all or substantially all the properties and assets of the
Company shall be a corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia and
shall expressly assume, by an indenture (or indentures, if at such time there is
more than one Trustee) supplemental hereto, executed by such successor Person
and delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, any premium and interest on and any
Additional Amounts with respect to all the Outstanding Securities and the
performance of every obligation in this Indenture and the Outstanding Securities
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) either the Company or the successor Person shall have delivered to the
Trustee an Officers' Certificate and a Opinion of Counsel, each stating that
such consolidation, merger, sale, assignment, transfer, lease or other
conveyance and, if a supplemental indenture is required in
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connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Person Substituted for Company.
Upon any consolidation by the Company with or merger of the Company into
any other Person or any sale, assignment, transfer, lease or conveyance, of all
or substantially all the properties and assets of the Company to any Person in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such sale, assignment, transfer,
lease or other conveyance is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter (except in the case of a lease) the predecessor Person shall be
released from all obligations and covenants under this Indenture, the Securities
and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the Company
(when authorized by or pursuant to a Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, 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 covenants of the Company contained
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (as shall be specified in such supplemental
indenture or indentures) or to surrender any right or power herein conferred
upon the Company; or
(3) to add to or change any of the provisions of this Indenture to provide
that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of, any premium or
interest on or any Additional Amounts with respect to Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any Coupons appertaining
thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 201 and 301; or
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(5) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 609; or
(6) to cure any ambiguity or to correct or supplement any provision herein
which may be defective or which may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not adversely affect the interests of
the Holders of Securities of any series then Outstanding or any Coupons
appertaining thereto in any material respect; or
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental indenture); or
(9) to supplement any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of any
series of Securities pursuant to Article Four, provided that any such action
shall not adversely affect the interests of any Holder of a Security of such
series and any Coupons appertaining thereto or any other Security or Coupon in
any material respect; or
(10) to secure the Securities; or
(11) to make provisions with respect to conversion or exchange rights of
Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or in any
supplemental indenture or in any Securities (which amendment or supplement may
apply to one or more series of Securities or to one or more Securities within
any series as specified in such supplemental indenture or indentures), provided
that such amendment or supplement does not apply to any Outstanding Security
issued prior to the date of such supplemental indenture and entitled to the
benefits of such provision.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to 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 the Securities of such series or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided that
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no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall,
(1) change the Stated Maturity of the principal of, or premium, if any, or
any installment of interest, if any, on or any Additional Amounts, if any, with
respect to, any Security or reduce the principal amount thereof or the rate (or
modify the calculation of such rate) of interest thereon or any Additional
Amounts with respect thereto, or any premium payable upon the redemption thereof
or otherwise, or change the obligation of the Company to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of any Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, or change the Place of
Payment where or the Currency in which the principal of, any premium or interest
on, or any Additional Amounts with respect to any Security is payable, or impair
the right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of repayment at the option of the Holder, on or
after the date for repayment), in each case as such Stated Maturity, Redemption
Date or date for repayment may be extended, in accordance with the terms of such
Security or any Coupon appertaining thereto, or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of Article Sixteen or the definition of
"Senior Indebtedness" in a manner adverse to the Holders of Securities, or
(4) modify any of the provisions of this Section, Section 513 or Section
1007, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby, or
(5) make any change that adversely affects the right, if any, to convert or
exchange any Security for Common Stock or other securities in accordance with
its terms.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which shall have been included expressly and solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture
Act) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 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 a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 906. Effect on Senior Indebtedness.
No supplement indenture shall directly or indirectly modify or eliminate
the provisions of Article Sixteen or the definition of "Senior Indebtedness" in
any manner which might terminate or impair the subordination of the Securities
to Senior Indebtedness without the prior written consent of the Holders of the
Senior Indebtedness.
Section 907. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and Additional
Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Company shall maintain, subject to any
laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment; provided, however, that if the Securities of such
series are listed on the London Stock Exchange or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company shall maintain a Paying Agent in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such Office or Agency. If at any
time the Company shall fail to maintain any such required Office or Agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of such series and any
Coupons appertaining thereto may be presented and surrendered for payment at the
place specified for the purpose with respect to such Securities as provided in
or pursuant to this Indenture, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no payment
of principal, premium, interest or Additional Amounts with respect to Bearer
Securities shall be made at any Office or Agency in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of
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principal of, any premium or interest on and any Additional Amounts with respect
to any such Security may be made at the Corporate Trust Office of the Trustee or
any Office or Agency designated by the Company in the Borough of Manhattan, The
City of New York, if (but only if) payment of the full amount of such principal,
premium, interest or Additional Amounts at all offices outside the United States
maintained for such purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more other Offices
or Agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an Office or Agency
in each Place of Payment for Securities of any series for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other Office or
Agency. Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates as the Place of Payment for each series of Securities the
Borough of Manhattan, The City of New York, and initially appoints the Corporate
Trust Office of the Trustee in the Borough of Manhattan, The City of New York as
the Company's Office or Agency in the Borough of Manhattan, The City of New York
for such purpose and as Security Registrar. The Company may subsequently
appoint a different Office or Agency in the Borough of Manhattan, The City of
New York and a different Security Registrar for the Securities of any series.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on, or any Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal or any premium, interest or Additional Amounts so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it shall, on or prior to each due date of the principal of, or any
premium or interest on, or any Additional Amounts with respect to any Securities
of such series, deposit with any Paying Agent a sum (in the Currency or
Currencies described in the preceding paragraph) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due, such sum to be
held in trust for the benefit of the Persons entitled thereto, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
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(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any payment of
principal, any premium or interest on or any Additional Amounts with respect to
the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any Security of any series or any Coupon appertaining
thereto and remaining unclaimed for two years after such principal or such
premium or interest or Additional Amount shall have become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security or any
Coupon appertaining thereto shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may, not later than 30 days after the Company's request for such repayment, at
the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment for such series or to be mailed to Holders of
Registered Securities of such series, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing nor shall it be later than
two years after such principal and any premium or interest or Additional Amounts
shall have become due and payable, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to
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include mention of the payment of Additional Amounts provided by the terms of
such series established hereby or pursuant hereto to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms, and express mention of the payment of Additional Amounts
(if applicable) in any provision hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company shall
furnish to the Trustee and the principal Paying Agent or Paying Agents, if other
than the Trustee, an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and premium,
if any, or interest, if any, on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory), licenses and franchises; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise if the Board of Directors of the Company determines that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries taken as a whole and that the loss thereof
is not disadvantageous in any material respect to the Holders.
Section 1006. Company Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating whether or not, to the best of his or her knowledge, the
Company is in default in the performance and observance of any of the terms,
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provisions and conditions of this Indenture and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
he or she may have knowledge.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1005 with respect to the Securities
of any series and, if expressly provided pursuant to Section 301(18), any
additional covenants applicable to the Securities of such series if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series, by Act of such Holders, either
shall waive such compliance in such instance or generally shall have waived
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed and, in the event that the Company shall determine that the Securities
of any series to be redeemed shall be selected from Securities of such series
having the same issue date, interest rate or interest rate formula, Stated
Maturity and other terms (the "Equivalent Terms"), the Company shall notify the
Trustee of such Equivalent Terms.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed or if
less than all of the Securities of any series with Equivalent Terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series or from the Outstanding Securities of such series with
Equivalent Terms, as the case may be, not previously called for redemption, by
such method
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as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Security of such series
not redeemed to less than the minimum denomination for a Security of such series
established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock or other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted or exchanged portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
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(4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder of such Security will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due and
payable upon each such Security or portion thereof to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities, together (in the case of
Bearer Securities) with all Coupons appertaining thereto, if any, maturing after
the Redemption Date, are to be surrendered for payment of the Redemption Price
and any accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities of
any series, if any, surrendered for redemption must be accompanied by all
Coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing Coupon or Coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible or
exchangeable into Common Stock or other securities, the conversion or exchange
price or rate, the date or dates on which the right to convert or exchange the
principal of the Securities of such series to be redeemed will commence or
terminate, as applicable, and the place or places where such Securities may be
surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers of
such Securities, if any (or any other numbers used by a Depository to identify
such Securities).
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with respect
to the Securities of any series called for redemption pursuant to Section 1104,
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 in the applicable Currency sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date, unless
otherwise specified pursuant to Section 301 for or in the Securities of such
series) any accrued interest on and Additional Amounts with respect thereto, all
such Securities or portions thereof which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with,
unless otherwise provided in or pursuant to this Indenture, any accrued and
unpaid interest thereon and Additional Amounts with respect thereto to but
excluding the Redemption Date; provided, however, that, except as otherwise
provided in or pursuant to this Indenture or the Bearer Securities of such
series, installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only upon presentation and
surrender of Coupons for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section 1002), and provided,
further, that, except as otherwise specified in or pursuant to this Indenture or
the Registered Securities of such series, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the Regular Record
Dates therefor according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price, or, at the option of the
Company, after payment to the Trustee for the benefit of the Company of, an
amount equal to the face amount of all such missing Coupons, or the surrender of
such missing Coupon or Coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that any interest or Additional Amounts represented
by Coupons shall be payable only upon presentation and surrender of those
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Coupons at an Office or Agency for such Security located outside of the United
States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or, if no rate is prescribed therefor in the Security, at the rate of
interest, if any, borne by such Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
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Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities, (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly. If as a result of the delivery or credit of Securities
of any series in lieu of cash payments pursuant to this Section 1202, the
principal amount of Securities of such series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such series for redemption, except upon Company Request, and
such cash payment shall be held by the Trustee or a Paying Agent and applied to
the next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall at the request of the Company from time to time pay over
and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that
series purchased by the Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount of
Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Section
1301, in connection with any repayment of Securities, the Company may arrange
for the purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.
Whenever this Indenture provides for any distribution to Holders of
Securities of any series in which not all of such Securities are denominated in
the same Currency, in the absence of any provision to the contrary in or
pursuant to this Indenture or the Securities of such series, any amount in
respect of any Security denominated in a Currency other than Dollars shall be
treated for any such distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series (if any) for
such distribution (or, if there shall be no applicable record date, such other
date reasonably proximate to the date of such distribution) as the Company may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution)
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of or made
the first publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 106) or shall
not thereafter proceed to cause the meeting to be held as provided herein, then
the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (1) of
this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
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Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(1), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of at least 66-2/3% in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
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Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. If
the Securities of such series are issuable in minimum denominations of less than
$1,000, then a Holder of such a Security in a principal amount of less than
$1,000 shall be entitled to a fraction of one vote which is equal to the
fraction that the principal amount of such Security bears to $1,000. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at
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the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
Section 1601. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and agrees,
and each Holder of Securities by his acceptance thereof, likewise covenants and
agrees, that the payment of the principal of, premium, if any, and interest, if
any, on, and Additional Amounts, if any, in respect of each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 1602. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Securities and the holders thereof by a lawful plan of
reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be entitled to
receive payment in full of the principal thereof (and premium, if any) and
interest due thereon (or to have such payment duly provided for) before the
Holders of the Securities are entitled to receive any payment upon the
principal (or premium, if any) or interest, if any, on, or Additional
Amounts, if any, in respect of the indebtedness evidenced by the
Securities; and
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders
of the Securities
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or the Trustee would be entitled except for the provisions of this Article
Sixteen shall be paid by the liquidating trustee or agent or other person
making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of
Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the
principal of (and premium, if any) and interest on the Senior Indebtedness
held or represented by each to the extent necessary to make payment in full
of all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or the
Holders of the Securities before all Senior Indebtedness is paid in full or
such payment is duly provided for, such payment or distribution shall be
paid over, upon written notice to the Trustee, to the holders of such
Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably as
aforesaid, for application to payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in full or
such payment duly provided for, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness (or such payment
having been duly provided for), the Holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to Senior Indebtedness until the principal of (and premium, if any)
and interest, if any, on, and Additional Amounts, if any, in respect of the
Securities shall be paid in full and no such payments or distributions to the
Holders of the Securities of cash, property or securities otherwise
distributable to the holders of Senior Indebtedness shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities be deemed to be a payment by the Company to or on
account of the Securities. It is understood that the provisions of this Article
Sixteen are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand. Nothing contained in this Article
Sixteen or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Securities, the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest, if any, on, and
Additional Amounts, if any, in respect of the Securities as and when the same
shall become due and payable in accordance with their terms, or to affect the
relative rights of the Holders of the Securities and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or in
the Securities prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Sixteen of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such
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remedy. Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee, subject to the provisions of Section 601,
shall be entitled to rely upon a certificate of the liquidating trustee or agent
or other person making any distribution to the Trustee for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Sixteen.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. The Trustee shall not be liable to any such
holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company moneys or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Sixteen.
If the Trustee or any Holder of Securities does not file a proper claim or
proof of debt in the form required in any proceeding referred to above prior to
30 days before the expiration of the time to file such claim in such proceeding,
then the holder of any Senior Indebtedness is hereby authorized, and has the
right, to file an appropriate claim or claims for or on behalf of such Holder of
Securities.
Section 1603. No Payment on Securities in Event of Default on Senior
Indebtedness.
No payment by the Company on account of principal of, or premium, if any,
sinking funds, if any, or interest, if any, on, or Additional Amounts, if any,
in respect of the Securities shall be made if there shall have occurred and be
continuing (i) a default in the payment when due of principal of, premium, if
any, sinking funds, if any, or interest, if any on any Senior Indebtedness of
the Company and any applicable grace period with respect to such default shall
have ended without such default having been cured or waived or ceasing to exist
or (ii) an event of default with respect to any Senior Indebtedness of the
Company resulting in the acceleration of the maturity thereof without such
acceleration having been rescinded or annulled.
Section 1604. Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities shall (a)
affect the obligation of the Company to make, or prevent the Company from
making, at any time except as provided in Sections 1602 and 1603, payments of
principal of (or premium, if any) or interest, if any, on, or Additional Amounts
or sinking fund payments, if any, with respect to the Securities or (b) prevent
the application by the Trustee of any moneys deposited with it hereunder to the
payment of or on account of the principal of (or premium, if any) or interest,
if any, on, or Additional Amounts, if any, in respect of the Securities, unless
the Trustee shall have received at its Corporate Trust Office written notice of
any event prohibiting the making of such payment more than two Business Days
prior to the date fixed for such payment.
Section 1605. Authorization of Holders to Trustee to Effect Subordination.
Each Holder of Securities by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination
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as provided in this Article Sixteen and appoints the Trustee his attorney-in-
fact for any and all such purposes.
Section 1606. Notices to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities pursuant to this Article Sixteen. Failure
to give such notice shall not affect the subordination of the Securities to
Senior Indebtedness. Notwithstanding the provisions of this Article Sixteen or
any other provisions of this Indenture, neither the Trustee nor any Paying Agent
(other than the Company) shall be charged with knowledge of the existence of any
Senior Indebtedness or of any event which would prohibit the making of any
payment of moneys to or by the Trustee or such Paying Agent, unless and until
the Trustee or such Paying Agent shall have received (in the case of the
Trustee, at its Corporate Trust Office) written notice thereof from the Company
or from the holder of any Senior Indebtedness or from the trustee for any such
holder, together with proof satisfactory to the Trustee of such holding of
Senior Indebtedness or of the authority of such trustee; provided, however, that
if at least two Business Days prior to the date upon which by the terms hereof
any such moneys may become payable for any purpose (including, without
limitation, the payment of either the principal of (or premium, if any) or
interest, if any, on any Security) the Trustee shall not have received with
respect to such moneys the notice provided for in this Section 1606, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such moneys and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to such date. The Trustee shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such a
notice has been given by a holder of Senior Indebtedness or a trustee on behalf
of any such holder. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness (or a trustee on behalf of such holder) to participate in
any payment or distribution pursuant to this Article Sixteen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person (or the
amount of Senior Indebtedness as to which such Person is trustee), the extent to
which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article
Sixteen and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
Section 1607. Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Sixteen in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior Indebtedness
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.
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Nothing in this Article Sixteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
Section 1608. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness
or the exercise by the holders of Senior Indebtedness of any of their rights
under any instrument creating or evidencing Senior Indebtedness, including,
without limitation, the waiver of default thereunder, may be made or done all
without notice to or assent from the Holders of the Securities or the Trustee.
To the extent permitted by applicable law, no compromise, alteration,
amendment, modification, extension, renewal or other change of, or waiver,
consent or other action in respect of, any liability or obligation under or in
respect of any Senior Indebtedness, or any of the terms, covenants or conditions
of any indenture or other instrument under which any Senior Indebtedness is
outstanding, shall in any way alter or affect any of the provisions of this
Article Sixteen or of the Securities relating to the subordination thereof.
Section 1609. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article Sixteen, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Sixteen.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION
By __________________________________
Name:
Title:
[SEAL]
Attest:
.,
as Trustee
By __________________________________
Name:
Title:
[SEAL]
Attest:
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EXHIBIT 5(a)
[LETTERHEAD OF SILVER, FREEDMAN & TAFF, L.L.P.]
June 25, 1997
Board of Directors
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, CA 94404
Re: Registration Statement on Form S-3
Members of the Board:
We have examined (i) the Registration Statement on Form S-3 (the
"Registration Statement") filed by Bay View Capital Corporation (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the issuance by the Company of subordinated debt
securities (the "Debt Securities") in the aggregate principal amount of
$150,000,000, (ii) the Company's Restated Certificate of Incorporation, as
amended, and Bylaws and (iii) records of the Company's corporate proceedings
relative to the issuance of the Debt Securities.
We have examined originals, or copies identified to our satisfaction, of
such corporate records of the Company and have made such examinations of law as
we have deemed relevant. In our examination, we have assumed and have not
verified (i) the genuineness of all signatures, (ii) the authenticity of all
documents submitted to us as originals, (iii) the conformity with the originals
of all documents supplied to us as copies, and (iv) the accuracy and
completeness of all corporate records and documents and all certificates and
statements of fact, in each case given or made available to us by the Company.
We have relied upon certificates and other written documents from public
officials upon government agencies and departments and we have assumed the
accuracy and authenticity of such certificates and documents.
<PAGE>
Board of Directors
Bay View Capital Corporation
June 25, 1997
Page 2
Based upon the foregoing, and having a regard for such legal
considerations as we deem relevant, we are of the opinion that when (i) the
indenture governing the Debt Securities (the "Indenture") has been duly executed
and delivered; and (ii) the Debt Securities have been duly issued in accordance
with the Indenture and as contemplated by the Registration Statement and the
requisite consideration therefor has been received, the Debt Securities will
have been validly issued and will constitute binding obligations of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Resitration Statement and the reference to our firm under the caption "Legal
Matters" in the prospectus that is a part of the Registration Statement.
Very truly yours,
/s/Silver, Freedman & Taff, L.L.P.
SILVER, FREEDMAN & TAFF, L.L.P.
<PAGE>
EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 333-29757 of Bay View Capital Corporation on Form
S-3 of our report dated January 24, 1997, appearing in the Annual Report on
Form 10-K of Bay View Capital Corporation for the year ended December 31, 1996
and to the references to us under the headings "Selected Financial Data" and
"Experts" in the Prospectus, which is a part of this Registration Statement.
/s/ Deloitte & Touche LLP
San Francisco, California
June 25, 1997
<PAGE>
EXHIBIT 23(C)
The Board of Directors
America First Eureka Holdings, Inc.:
We consent to the incorporation by reference in Amendment No. 1 to the
registration statement (No. 333-29757) on Form S-3 of Bay View Capital
Corporation of our report dated January 27, 1997, except as to note 24 to the
consolidated financial statements, which is as of May 8, 1997, with respect to
the consolidated balance sheets of America First Eureka Holdings, Inc. and
Subsidiary as of December 31, 1996 and 1995, and the related consolidated
statements of income, shareholder's equity and cash flows for each of the
years in the three-year period ended December 31, 1996, which report appears
in the Form 8-K of Bay View Capital Corporation dated June 23, 1997 and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
San Francisco, California
June 25, 1997
