<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): AUGUST 28, 1997
-------------------
BAY VIEW CAPITAL CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 0-17901 94-3078031
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(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) No.)
1840 GATEWAY DRIVE, SAN MATEO, CALIFORNIA 94404
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (415) 573-7300
--------------
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(Former name or former address, if changed since last report.)
<PAGE>
Item 5. Other Events.
------------
On August 28, 1997, Bay View Capital Corporation (the "Company")
completed the sale of $100,000,000 aggregate principal amount of 9-1/8%
Subordinated Notes due 2007 (the "Notes"). The Notes were issued pursuant to the
indenture, dated as of August 28, 1997, between the Company and SunTrust Bank,
Central Florida, National Association, as trustee (the "Indenture"), a copy of
which is attached hereto as Exhibit 99.1, and subject to the terms of the
Officers' Certificate (as defined in the Indenture) provided pursuant to
Sections 201 and 301 of the Indenture, a copy of which is attached hereto as
Exhibit 99.2. The form of the Note is attached hereto as Exhibit 99.3. The Notes
were registered under the Securities Act of 1933 pursuant to the Company's
Registration Statement on Form S-3 (No. 333-29757).
Item 7. Financial Statements and Exhibits.
---------------------------------
(c)
99.1 Indenture, dated as of August 28, 1997, between the Company and
SunTrust Bank, Central Florida, National Association
99.2 Officers' Certificate pursuant to Sections 201 and 301 of the
Indenture
99.3 Form of 9 1/8% Subordinated Note due 2007
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BAY VIEW CAPITAL CORPORATION
Date: August 28, 1997 By:/s/ DAVID A. HEABERLIN
---------------------------------
David A. Heaberlin
Executive Vice President and
Chief Financial Officer
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
99.1 Indenture, dated as of August 28, 1997, between the Company and
SunTrust Bank, Central Florida, National Association
99.2 Officers' Certificate pursuant to Sections 201 and 301 of the
Indenture
99.3 Form of 9 1/8% Subordinated Note
<PAGE>
EXHIBIT 99.1
================================================================================
BAY VIEW CAPITAL CORPORATION,
Issuer
to
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION,
Trustee
_______________
INDENTURE
_______________
Dated as of August 28, 1997
Subordinated Debt Securities
================================================================================
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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>
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
Recitals....................................................................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application
<S> <C> <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
ARTICLE TWO
Securities Forms
Section 201. Forms Generally................................................ 17
Section 202. Form of Trustee's Certificate of Authentication................ 18
Section 203. Securities in Global Form...................................... 18
ARTICLE THREE
The Securities
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
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<TABLE>
<S> <C> <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
ARTICLE FOUR
Satisfaction and Discharge of Indenture
Section 401. Satisfaction and Discharge..................................... 33
Section 402. Defeasance and Covenant Defeasance............................. 34
Section 403. Application of Trust Money..................................... 39
Section 404. Effect on Subordination Provisions............................. 39
ARTICLE FIVE
Remedies
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................................ 43
Section 505. Trustee May Enforce Claims without Possession of Securities or
Coupons......................................................... 44
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.................................. 46
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
ARTICLE SIX
The Trustee
Section 601. Certain Rights of Trustee....................................... 48
Section 602. Notice of Defaults.............................................. 49
Section 603. Not Responsible for Recitals or Issuance of Securities.......... 49
Section 604. May Hold Securities............................................. 49
Section 605. Money Held in Trust............................................. 50
</TABLE>
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<TABLE>
<S> <C> <C>
Section 606. Compensation and Reimbursement.............................. 50
Section 607. Corporate Trustee Required; Eligibility..................... 51
Section 608. Resignation and Removal; Appointment of Successor........... 51
Section 609. Acceptance of Appointment by Successor...................... 52
Section 610. Merger, Conversion, Consolidation or Succession to Business. 54
Section 611. Appointment of Authenticating Agent......................... 54
ARTICLE SEVEN
Holders Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders... 56
Section 702. Preservation of Information; Communications to Holders...... 56
Section 703. Reports by Trustee.......................................... 56
Section 704. Reports by Company.......................................... 57
ARTICLE EIGHT
Consolidation, Merger and Sales
Section 801. Company May Consolidate, Etc., Only on Certain Terms........ 57
Section 802. Successor Person Substituted for Company.................... 58
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders.......... 58
Section 902. Supplemental Indentures with Consent of Holders............. 60
Section 903. Execution of Supplemental Indentures........................ 61
Section 904. Effect of Supplemental Indentures........................... 61
Section 905. Reference in Securities to Supplemental Indentures.......... 61
Section 906. Effect on Senior Indebtedness............................... 61
Section 907. Conformity with Trust Indenture Act......................... 62
ARTICLE TEN
Covenants
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........... 64
Section 1004. Additional Amounts.......................................... 65
Section 1005. Corporate Existence......................................... 66
Section 1006. Company Statement as to Compliance.......................... 66
Section 1007. Waiver of Certain Covenants................................. 66
</TABLE>
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<TABLE>
<CAPTION>
ARTICLE ELEVEN
Redemption of Securities
<S> <C> <C>
Section 1101. Applicability of Article.......................... 67
Section 1102. Election to Redeem; Notice to Trustee............. 67
Section 1103. Selection by Trustee of Securities to be Redeemed. 67
Section 1104. Notice of Redemption.............................. 68
Section 1105. Deposit of Redemption Price....................... 69
Section 1106. Securities Payable on Redemption Date............. 70
Section 1107. Securities Redeemed in Part....................... 71
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.......................... 71
Section 1202. Satisfaction of Sinking Fund Payments with
Securities........................................ 71
Section 1203. Redemption of Securities for Sinking Fund......... 72
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article.......................... 72
ARTICLE FOURTEEN
Securities in Foreign Currencies
Section 1401. Applicability of Article.......................... 73
ARTICLE FIFTEEN
Meetings of Holders of Securities
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.............. 74
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... 76
</TABLE>
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<TABLE>
<CAPTION>
ARTICLE SIXTEEN
Subordination of Securities
<S> <C> <C>
Section 1601. Agreement to Subordinate....................................... 76
Section 1602. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities...................................... 77
Section 1603. No Payment on Securities in Event of Default on
Senior Indebtedness............................................ 79
Section 1604. Payments on Securities Permitted............................... 79
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....................... 80
Section 1608. Modifications of Terms of Senior Indebtedness.................. 80
Section 1609. Reliance on Judicial Order or Certificate of Liquidating Agent. 81
</TABLE>
v
<PAGE>
INDENTURE, dated as of August 28, 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
SunTrust Bank, Central Florida, National Association, a banking association duly
organized and existing under the laws of the United States of America
(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
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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" means, with respect to any specified Person, any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such specified Person and any legal or beneficial owner,
directly or indirectly, of 20% or more of the total voting power of all
outstanding Voting Stock of such specified Person. Notwithstanding the
foregoing, no Securitization Entity shall be deemed an Affiliate of the Company.
The term "Affiliated" has a meaning correlative to the foregoing.
"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.
2
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"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.
"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" means, with respect to the Securities of any series unless
otherwise specified pursuant to Section 301 with respect to such Securities, any
day other than a Saturday, Sunday or other day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or executive
order to close; provided that such term shall mean, with respect to any Place of
Payment for such Securities of any series, unless otherwise specified with
respect to such Securities pursuant to Section 301, any day other than a
Saturday, Sunday or other day on which banking institutions in such Place of
Payment are authorized or obligated by law, regulation or executive order to
close.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights or other equivalents (however designated) in the equity
of such Person (including, without limitation, with respect to a corporation,
common stock, preferred stock and other capital stock, with respect to a
partnership, partnership interests, whether general or limited, and, with
respect to a limited liability company, limited liability company interests) and
any rights (other than debt securities convertible into or exchangeable or
exercisable for equity interests), warrants or options exchangeable or
exercisable for or convertible into an equity interest in such Person.
"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.
3
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"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.
"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.
"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 ownership of voting securities (or pledge of voting securities
if the pledgee thereof may on the date of determination exercise or control the
exercise of the voting rights of the owner of such voting securities), by
contract or otherwise; and the terms "Controlling" and "Controlled" have
meanings correlative to the foregoing.
"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 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 225 East Robinson Street, Suite 250, Orlando, Florida
32801.
"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.
4
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"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.
"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.
5
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"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 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) Bay View Bank, a federal savings bank, and
any successor to all or substantially all of the business of Bay View Bank, a
federal savings 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
6
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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.
"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
7
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(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;
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, association, company, business
trust, 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
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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.
"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.
"Securitization Entity" means any pooling arrangement or entity (except for
any entity in corporate or partnership form) formed or originated for the
purpose of holding, and issuing securities representing interests in, one or
more pools of mortgages, leases, credit card receivables, home equity loan
receivables, automobile loans, leases or installment sales contracts, other
consumer receivables or other financial assets of the Company or any of its
Subsidiaries, and shall include, without limitation, any grantor trust, owner's
trust or real estate mortgage investment conduit.
"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
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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 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 instance 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. Notwithstanding the foregoing, no Securitization Entity shall be deemed
to be a Subsidiary of the Company.
"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.
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"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.
"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).
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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.
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
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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.
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
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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 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,
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(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.
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.
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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.
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
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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 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.
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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.
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.
SunTrust Bank, Central Florida,
National Association,
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
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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.
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;
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(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 of 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 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
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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;
(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;
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(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;
(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
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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 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
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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 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
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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 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
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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 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
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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 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
certificated 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
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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 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.
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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 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
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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 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
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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 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
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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.
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
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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.
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
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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 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
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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 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.
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(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 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
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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, 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) In the case of defeasance pursuant to Section 402(2), the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm 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 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 had not occurred; or, in the
case of covenant defeasance pursuant to Section 402(3), 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 covenant defeasance 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 covenant defeasance 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.
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(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
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)
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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 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.
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ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be 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
(3) default in the 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 governmental or other 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,
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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 taking of corporate action by the Company or any Major Bank
Subsidiary in furtherance of any such action; 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
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(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
(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,
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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.
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
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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 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.
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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
(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.
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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.
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
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(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.
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,
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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;
(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;
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(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 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.
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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);
(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
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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 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:
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(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 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
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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 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
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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 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
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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.
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:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
SunTrust Bank, Central Florida,
National Association,
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 June 1 and December 1 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
(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.
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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 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
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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
corporation 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 an Opinion of Counsel, each stating that
such consolidation, merger, sale, assignment, transfer, lease or other
conveyance and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
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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
(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
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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 no such supplemental indenture,
without the consent of the Holder of each Outstanding Security affected thereby,
shall,
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(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), 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 supplemental 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; provided that, if (i) the
Borough of Manhattan, The City of New York is a Place of Payment for the
Securities of any series, (ii) there shall be another Place of Payment for such
Securities in addition to the Borough of Manhattan, The City of New York, and
(iii) all Securities of such series are originally issued solely in the form of
one or more permanent global Securities, then the Company shall not be required
to maintain any such office or agency in the Borough of Manhattan, The City of
New York unless and until all or any portion of such global Securities shall be
exchanged for definitive certificated Securities of such series as contemplated
by the last paragraph of this Section 1002. 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
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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 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 the place (initially Orlando,
Florida) where the Trustee for the Securities of such series shall from time to
time maintain its Corporate Trust Office, and initially appoints the Corporate
Trust Office of the Trustee in Orlando, Florida as the Company's Office or
Agency in Orlando, Florida for such purpose and as Security Registrar. The
Company may subsequently appoint a different Office or Agency in any such place,
and a different Security Registrar for the Securities of any series.
As set forth above in this Section 1002, and unless otherwise provided
pursuant to Section 301 with respect to any series of Securities, in the event
that the Securities of a series are originally issued solely in the form of one
or more permanent global Securities and if at any time thereafter Securities of
such series are issued in definitive certificated form in exchange for all or
any portion of such global Securities (whether pursuant to Section 305 or
otherwise pursuant to the terms of such Securities), the Company shall, at all
times from and after the date of the first such exchange until such time as no
Securities of such series in definitive certificated form are Outstanding,
establish and maintain an Office or Agency in the Borough of Manhattan, The City
of New York (in addition to any other Offices or Agencies the Company is
required to maintain in respect of such Securities) where Securities of such
series may be surrendered and where notices and demands in respect of Securities
of such series and this Indenture may be served for the purposes specified in,
and as contemplated by, the first paragraph of this Section 1002.
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Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, 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:
(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
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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 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
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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,
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.
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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 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
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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,
(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,
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(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.
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
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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
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
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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.
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
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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.
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.
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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.
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
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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.
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%
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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.
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
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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 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
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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 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
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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 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, or the principal of, premium, if
any, sinking funds, if any, and interest, if any, on such Senior Indebtedness
having been paid in full.
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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 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
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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.
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.
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* * * * *
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: /s/ Edward H. Sondker
______________________________________________
Name: Edward H. Sondker
Title: President and Chief Executive Officer
[SEAL]
Attest:
/s/ Robert J. Flax
____________________________________
Name: Robert J. Flax
Title: Executive Vice President,
General Counsel and Secretary
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Theresa Hawkins
______________________________________________
Name: Theresa Hawkins
Title: Vice President
[SEAL]
Attest:
/s/ Alice Springer
____________________________________
Name: Alice Springer
Title: Assistant Vice President
<PAGE>
EXHIBIT 99.2
$100,000,000
BAY VIEW CAPITAL CORPORATION
9-1/8% SUBORDINATED NOTES DUE 2007
OFFICERS' CERTIFICATE PURSUANT TO SECTIONS 201 AND 301 OF THE
INDENTURE IDENTIFIED BELOW
August 28, 1997
The undersigned, Edward H. Sondker, President and Chief Executive Officer,
and Robert J. Flax, Executive Vice President, General Counsel and Secretary of
Bay View Capital Corporation, a Delaware Corporation (the "Company"):
(a) Each hereby certifies that he has read and is familiar with the
provisions of Article Two and Article Three of the Indenture referred to below
relating to the issuance of Notes thereunder and the definitions used in such
Articles; that he is generally familiar with the other provisions of the
Indenture and with the affairs of the Company and its corporate acts and
proceedings; that, in his opinion, he has made such examination or investigation
as is necessary to enable him to express an informed opinion (i) as to whether
or not the covenants and conditions in the Indenture have been complied with and
(ii) that all covenants or conditions provided for in the Indenture relating to
the establishment of a series of Debt Securities and the form and terms of such
series and the issuance, authentication and delivery of such Debt Securities
have been complied with.
(b) Acting pursuant to an authorization contained in a resolution of the
Executive Committee of the Board of Directors of the Company (a copy of which,
certified by the Secretary of the Company, is delivered herewith) duly adopted
on June 16, 1997, do hereby authorize, adopt, and approve the following terms
for a series of Debt Securities to be issued under the Indenture dated as of
August 28, 1997 (the "Indenture", which term, as used herein, includes the terms
of the Notes established by this Officers' Certificate), between the Company and
SunTrust Bank, Central Florida, National Association, as Trustee:
(1) Title of Debt Securities of the series:
9-1/8% Subordinated Notes due 2007 (the "Notes").
(2) Limit, if any, on the aggregate principal amount of Notes (except
for Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 905
or 1107):
$100,000,000.
(3) The Notes shall be issuable as Registered Securities only.
<PAGE>
(4) The Notes shall be issuable in permanent global form and shall be
exchangeable for Notes in definitive certificated form only in the circumstances
specified in Section 305 of the Indenture; The Depository Trust Company is
appointed as Depository with respect to the Notes.
(5) Date on which the principal of Notes is payable at final maturity:
August 15, 2007.
(6) Interest on the Notes:
(a) The rate of interest on the Notes and the method of
calculation thereof:
9-1/8% per annum calculated on the basis of a 360-day year of
twelve 30-day months.
(b) The date from which such interest shall accrue:
August 28, 1997.
(c) Interest Payment Dates:
February 15 and August 15, commencing February 15, 1998.
(d) Regular Record Dates:
February 1 and August 1 (in each case whether or not a
Business Day) next preceding each February 15 and August 15, respectively.
(7) The place or places where the principal of, premium, if any, and
interest on the Notes shall be payable, where notices or demands to or upon the
Company in respect of the Notes and the Indenture may be served and where Notes
may be surrendered for registration of transfer or exchange shall be as set
forth in Section 1002 of the Indenture.
(8) The Notes will be redeemable at the option of the Company (upon
obtaining the approval of the Federal Reserve Board, if required, in the event
the Company becomes a bank holding company), in whole or from time to time in
part, at any time on or after August 15, 2002, on not less than 30 nor more
than 60 days' prior written notice to each holder of Notes to be redeemed, at
the redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest, if any, to the relevant redemption
date, if redeemed during the 12-month period beginning on August 15 of the years
indicated below; provided that installments of interest on Notes which are due
and payable on or prior to the relevant redemption date shall be payable to the
holders of such Notes registered as such at the close of business on the
relevant Regular Record Dates:
2
<PAGE>
Year Redemption Price
--------------------- -----------------
2002................. 104.563%
2003................. 103.042%
2004................. 101.521%
2005 and thereafter.. 100.000%
In addition, at any time prior to August 15, 2002, the Notes shall be
redeemable at the option of the Company, in whole or from time to time in part,
within 180 days of the occurrence of a Change of Control or a Regulatory Event,
on not less than 30 nor more than 60 days' prior written notice to each holder
of Notes to be redeemed, at a redemption price equal to the sum of (x) the
principal amount thereof, plus (y) accrued and unpaid interest, if any, to the
applicable date of redemption, plus (z) the Applicable Premium.
(9) The Notes shall not be entitled to the benefit of any sinking fund.
(10) The Notes shall be issuable in denominations of $1,000 and any
integral multiple thereof.
(11) The following additional covenants shall be applicable with respect
to the Notes:
(a) Limitation on Restricted Payments. (i) The Company will not,
---------------------------------
and will not permit any of its Subsidiaries to, directly or indirectly:
(A) declare, pay or set apart any funds for the payment of any
dividend on, or make any distribution to holders of, any Capital Stock of the
Company or any Capital Stock of any Subsidiary of the Company (other than
payments to the Company or a Subsidiary of the Company and other than dividends
or distributions to the extent payable in Qualified Capital Stock of the
Company);
(B) repurchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any Capital Stock of the Company or any Subsidiary
(other than any Wholly Owned Subsidiary) of the Company; or
(C) prior to any Fixed Maturity of principal or any scheduled
mandatory redemption date or any scheduled sinking fund payment of any Junior
Subordinated Indebtedness, make any principal payments on, or repurchase,
redeem, defease or otherwise acquire or retire for value, directly or
indirectly, any Junior Subordinated Indebtedness; (each of the foregoing actions
described in clauses (A) through (C) above, other than any such action that is a
Permitted Payment (as defined below), is referred to herein as a "Restricted
Payment"), unless immediately after giving effect to the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than cash, as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution), (1) no
Default or Event of Default shall have occurred and be continuing, (2) the
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Company and each Principal Bank Subsidiary of the Company will be in compliance
with its Regulatory Capital Requirements and (3) the aggregate amount of all
such Restricted Payments by the Company and its Subsidiaries declared or made
after June 30, 1997 (excluding all Restricted Payments declared or made pursuant
to and in compliance with clause (y) or (z) of the proviso to this paragraph
(i)) does not exceed the sum of:
(aa) 50% of the Adjusted Consolidated Net Income of the Company
accrued on a cumulative basis during the period commencing on July 1, 1997 and
ending on the last day of the Company's most recent fiscal quarter ending prior
to the date of such Restricted Payment (or, if such Adjusted Consolidated Net
Income shall be a loss, minus 100% of such loss);
(bb) the aggregate (without duplication) of the Net Cash Proceeds and
the Fair Market Value of property not constituting Net Cash Proceeds received by
the Company after July 1, 1997 from the issuance or sale (other than to any of
its Subsidiaries) of Qualified Capital Stock of the Company, except, in each
case, to the extent such proceeds or property are used to repurchase, redeem,
defease, make sinking fund payments on or otherwise acquire or retire Capital
Stock of the Company or any Subsidiary (other than any Wholly Owned Subsidiary
and other than Capital Stock of a Subsidiary of the Company if purchased from
such Subsidiary) of the Company or Junior Subordinated Indebtedness as set forth
in clause (ii)(A) below and except, in each case, for Qualified Capital Stock
issued in connection with the Merger; and
(cc) the aggregate (without duplication) of the Net Cash Proceeds and
the Fair Market Value of property not constituting Net Cash Proceeds received by
the Company after July 1, 1997 from the issuance or sale (other than to any of
its Subsidiaries) of any debt securities or Redeemable Capital Stock that is
subsequently converted into or exchanged for Qualified Capital Stock of the
Company plus (without duplication) any additional Net Cash Proceeds and the Fair
Market Value of any additional property received by the Company at the time of
such conversion or exchange, except in each case for any debt securities or
Redeemable Capital Stock issued in connection with the Merger; provided that (x)
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the foregoing provisions of this paragraph (i) will not restrict the payment of
any dividend within 60 days after the date of declaration thereof if, at such
date of declaration, such declaration and payment was permitted by the foregoing
provisions of this paragraph (i), (y) notwithstanding the limitations set forth
in clause (3) of this paragraph (i), but subject to compliance with the
conditions set forth in clauses (1) and (2) of this paragraph (i), the Company
and its Subsidiaries may declare and make Restricted Payments in an aggregate
amount not to exceed $15 million in the period from July 1, 1997 through
December 31, 1997 and not to exceed $30 million in any calendar year thereafter
(commencing with the calendar year ending December 31, 1998) and no Restricted
Payments declared or made pursuant to and in compliance with this clause (y)
shall be included in calculating the aggregate amount of Restricted Payments
declared or made by the Company and its Subsidiaries for purposes of clause (3)
of this paragraph (i), and (z) the foregoing provisions of this paragraph (i)
will not restrict the repurchase or redemption of shares of preferred stock of
EurekaBank, A Federal Savings Bank, which are outstanding on the Issue Date and
held by the Federal Deposit Insurance Corporation, so long as
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the aggregate purchase or redemption price does not exceed $10 million, such
purchase or redemption occurs prior to or substantially concurrently with the
Merger and such preferred stock is retired following such redemption or
repurchase, and no Restricted Payments declared or made pursuant to and in
compliance with this clause (z) shall be included in calculating the aggregate
amount of Restricted Payments declared or made by the Company and its
Subsidiaries for purposes of clause (3) of this paragraph (i).
(ii) So long as no Default or Event of Default has occurred and is
continuing, the provisions of paragraph (i) above shall not restrict the
following actions (each being referred to as a "Permitted Payment"):
(A) the repurchase, redemption, defeasance or other acquisition
or retirement of any Capital Stock of the Company or any Subsidiary (other than
a Wholly Owned Subsidiary and other than the purchase of Capital Stock of a
Subsidiary of the Company from such Subsidiary) of the Company or Junior
Subordinated Indebtedness in exchange for (including any such exchange pursuant
to the exercise of a conversion right or privilege where, in connection
therewith, cash is paid in lieu of the issuance of fractional shares or scrip),
or out of the Net Cash Proceeds or Fair Market Value of property not
constituting Net Cash Proceeds of, a substantially concurrent issue and sale
(other than to a Subsidiary of the Company) of Qualified Capital Stock of the
Company; provided that the Net Cash Proceeds or Fair Market Value of such
property received by the Company from the issuance of such shares of Qualified
Capital Stock shall, to the extent so utilized, be excluded from clause (bb) of
paragraph (i) above; and
(B) the repurchase, redemption, defeasance or other acquisition
or retirement of any Junior Subordinated Indebtedness (other than Redeemable
Capital Stock) in exchange for, or out of the Net Cash Proceeds of, a
substantially concurrent issue and sale (other than to a Subsidiary of the
Company) of new Junior Subordinated Indebtedness of the Company (such a
transaction, a "refinancing;" the term "refinanced" shall have a meaning
correlative to the foregoing); provided that (a) any such new Junior
Subordinated Indebtedness of the Company shall be in a principal amount that
does not exceed an amount equal to the sum of (i) the principal amount of the
Junior Subordinated Indebtedness to be so refinanced, (ii) the amount of any
premium expected to be paid in connection with such refinancing pursuant to the
terms of the Junior Subordinated Indebtedness to be so refinanced or the amount
of any premium reasonably determined by the Company as necessary to accomplish
such refinancing by means of a tender offer, privately negotiated repurchase or
otherwise and (iii) the amount of expenses of the Company incurred in connection
with such refinancing (provided that for purposes of this clause (a), the
principal amount of any Junior Subordinated Indebtedness shall be deemed to mean
the principal amount thereof or, if such Junior Subordinated Indebtedness
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser amount as would
be due and payable if such Junior Subordinated Indebtedness were accelerated as
of the date of determination); (b) (x) if such refinanced Junior Subordinated
Indebtedness has an Average Life to Stated Maturity shorter than that of the
Notes or a final Fixed Maturity earlier than the Final Maturity Date of the
Notes, such new Junior Subordinated Indebtedness shall have an Average Life to
Stated Maturity no shorter than the Average Life to Stated Maturity of such
refinanced Junior Subordinated Indebtedness and a final
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Fixed Maturity no earlier than the final Fixed Maturity of such refinanced
Junior Subordinated Indebtedness or (y) in all other cases, each Fixed Maturity
of principal (or any required repurchase (other than pursuant to Permitted
Repurchase Provisions), redemption, defeasance or sinking fund payments) of such
new Junior Subordinated Indebtedness shall be on or after the Final Maturity
Date of the Notes; and (c) such new Junior Subordinated Indebtedness of the
Company is expressly subordinate to the Notes in right of payment to at least
substantially the same extent as the Junior Subordinated Indebtedness being
refinanced.
(b) Limitation on Affiliate Transactions. The Company will not, and
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will not permit any of its Subsidiaries to, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property, any employee compensation arrangements or the
rendering of any service) with any Affiliate of the Company or any Affiliate of
any of the Company's Subsidiaries unless the terms thereof (i) are no less
favorable to the Company or such Subsidiary, as the case may be, than those that
could be obtained at the time of such transaction in arm's-length dealings with
a Person who is not such an Affiliate, (ii) if such transaction involves an
amount in excess of $5.0 million, (a) are set forth in writing and (b) have been
approved by resolution adopted by a majority of the members of the Company's
board of directors having no personal stake in such transaction and (iii) if
such transaction involves an amount in excess of $15.0 million, have been
determined (as set forth in a written opinion) by a nationally recognized
investment banking firm (or, if nationally recognized investment banking firms
do not customarily render opinions with respect to transactions of such type, by
a nationally recognized expert with experience in evaluating the terms and
conditions of transactions of such type) to be fair, from a financial point of
view, to the Company or such Subsidiary, as the case may be; and the Company
shall have delivered to the Trustee the writings, resolutions and/or opinions,
as the case may be, required by clauses (ii) and (iii) of this sentence.
The provisions of the foregoing paragraph shall not apply to (i)
transactions between or among the Company and any of its Subsidiaries or between
or among Subsidiaries of the Company, (ii) any Restricted Payment or Permitted
Payment permitted to be made under the covenant described under (a) (Limitation
on Restricted Payments) above, (iii) loans or advances to employees in the
ordinary course of business, (iv) customary directors fees and indemnities, (v)
ordinary course commercial agreements or renewals thereof on such terms as are
in effect as of the Issue Date and which terms are no less favorable to the
Company or such Subsidiary, as the case may be, than those that could be
obtained at the time of such transaction in arm's-length dealings with a Person
who is not such an Affiliate, (vi) any issuance of securities or other payments,
compensation, benefits, awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment arrangements, stock options and stock
ownership plans approved by the Board of Directors of the Company and (vii) the
grant of stock options or similar rights to employees and directors of the
Company or any of its Subsidiaries pursuant to plans approved by the Board of
Directors of the Company.
(c) Reports. The Company will file on a timely basis with the
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Commission, to the extent such filings are accepted by the Commission and
whether or not the Company has a class of securities registered under the
Exchange Act, the annual reports, quarterly reports and other documents that the
Company would be required to file if it were subject to
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Section 13 or 15(d) of the Exchange Act. The Company will (a) file with the
Trustee, and mail to each holder of Notes and, so long as any of the Notes is
represented by one or more Global Notes, mail or otherwise deliver to each
beneficial owner of an interest in the Global Notes (upon written request to the
Company by such beneficial owner), without cost to such holder or beneficial
owner, as the case may be, copies of such reports and documents within 15 days
after the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required and (b) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, supply at the Company's cost copies of
such reports and documents to any prospective holder of Notes and, so long as
any of the Notes is represented by one or more Global Notes, to each prospective
owner of a beneficial interest in the Global Notes promptly upon written
request.
(d) Limitation on Consolidation, Merger and Sale of Assets. The
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Company will 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 Person, or the
successor or transferee Person (if other than the Company) (the "Successor
Person") 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 and
premium, if any, and interest on all of the Notes outstanding under the
Indenture and the performance of the Company's other obligations under the
Indenture and the Notes; (b) immediately after giving effect to such transaction
or series of transactions, no Default or Event of Default with respect to the
Notes shall have happened and be continuing; (c) immediately after giving effect
to such transaction or series of transactions on a pro forma basis, the Company
and each of its Principal Bank Subsidiaries or the Successor Person and each of
its Principal Bank Subsidiaries, as the case may be, shall be in compliance with
its Regulatory Capital Requirements; and (d) either the Company or the Successor
Person shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease or other conveyance and, if a supplemental indenture
is required in connection with such transaction, such supplemental indenture
comply with this section and that all conditions precedent herein or in the
Indenture provided for relating to such transaction have been complied with;
provided that clause (c) of this paragraph shall not be applicable at any time
that (1) the Company is subject to the capital adequacy guidelines of the
Federal Reserve Board and (2) the Company has reasonably determined (as
evidenced by an Officers' Certificate delivered to the Trustee) that there is
more than an insubstantial risk that the continued applicability of such clause
(c) would prevent the Company from treating the Notes as Tier 2 Capital (or the
then equivalent thereof, if applicable) for purposes of the capital adequacy
guidelines of the Federal Reserve Board, as then in effect and applicable to the
Company; and provided, further, that if at any time thereafter (I) the Company
ceases to be subject to the capital adequacy guidelines of the Federal Reserve
Board or (II) the Company would not at such time be able to make the
determination described in clause (2) above, then the provisions of such clause
(c) shall thereupon automatically again become applicable.
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The provisions of the preceding paragraph will apply with respect to
the Notes instead of, and insofar as such provisions relate to the Notes shall
supersede and replace, Section 801 of the Indenture.
(12) Terms defined for purposes of this Officers' Certificate and the
issuance of the Notes:
"Adjusted Consolidated Net Income" of any Person means, for any
period, the consolidated net income (or loss) of such Person and its
consolidated Subsidiaries for such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such net income (loss), by
excluding, without duplication, (i) all extraordinary gains and losses, less all
fees and expenses relating thereto, net of taxes, (ii) the portion of net income
(or loss) of any Person (other than such Person and any of its consolidated
Subsidiaries) in which such Person or any of its Subsidiaries has an ownership
interest, except to the extent of the amount of dividends or other distributions
actually paid to such Person or its consolidated Subsidiaries in cash by such
other Person during such period, (iii) the net income (or loss) of any Person
combined with such Person or any of its Subsidiaries on a "pooling of interests"
basis attributable to any period prior to the date of combination, (iv) any gain
or loss, net of taxes, realized upon the termination of any employee pension
benefit plan, (v) the net income of any Subsidiary of such Person to the extent
that the declaration or payment of dividends or similar distributions by that
Subsidiary of that net income is not at the time permitted, directly or
indirectly, by operation of the terms of its charter or other organizational
documents or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulations (including, without limitation, any Regulatory
Capital Requirements) applicable to that Subsidiary or its shareholders;
provided that, upon the termination or expiration of such dividend or
distribution restrictions, the portion of net income of such Subsidiary
allocable to such Person and previously excluded shall be included in the
computation of Adjusted Consolidated Net Income of such Person to the extent of
the amount of dividends or other distributions actually paid to such Person in
cash by such Subsidiary, (vi) any amortization of goodwill arising from the
Merger, or (vii) any utilization of any tax-loss carryforward acquired in the
Merger.
"Applicable Premium" means, with respect to a Note, the greater of (i)
1.0% of the then outstanding principal amount of such Note and (ii) (a) the
present value of all remaining required interest and principal payments due on
such Note and all premium payments relating thereto assuming a redemption date
of August 15, 2002, computed using a discount rate equal to the Treasury Rate
plus 50 basis points minus (b) the then outstanding principal amount of such
Notes minus (c) accrued and unpaid interest paid on the date of redemption.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment (including any sinking fund or mandatory redemption payments) of such
Indebtedness multiplied by (b) the amount of each such principal payment by (ii)
the sum of all such principal payments.
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"Beneficial Owner" has the meaning attributed to it in Rules 13d-3 and
13d-5 (as in effect on the Issue Date) under the Exchange Act, except that a
Person shall be deemed to be the "beneficial owner" of all shares or other
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time.
"Business Day" means any day, other than a Saturday or Sunday, that is
not a day on which banking institutions in the City of New York are authorized
or required by law, regulation or executive order to close.
"Capital Lease Obligation" of any Person means any obligations of such
Person under any lease which, in accordance with GAAP, is required to be
recorded as a capitalized lease obligation; and the amount of such obligation at
any date shall be the capitalized amount thereof at such date, determined in
accordance with GAAP and the final Fixed Maturity of such obligation shall be
the date of the last payment of rent due under such lease prior to the first
date on which such lease may be terminated by the lessee pursuant to the terms
thereof without payment of a penalty.
"Cash Equivalents" means (i) any evidence of indebtedness with a
maturity of 180 days or less issued or unconditionally and fully guaranteed or
insured directly by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) deposits, certificates of
deposit or bankers' acceptances with a maturity of 180 days or less of any
domestic financial institution which is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than $500
million; (iii) commercial paper with a maturity of 180 days or less issued by a
corporation (other than an Affiliate of the Company) organized under the laws of
the United States of America, any state thereof or the District of Columbia and
rated at least "A-1" by Standard & Poor's Ratings Group (or any successor
thereto) or "P-1" by Moody's Investors Service, Inc. (or any successor thereto);
and (iv) repurchase agreements and reverse repurchase agreements relating to
marketable direct obligations issued or unconditionally and fully guaranteed by
the United States of America or issued by any agency thereof and backed by the
full faith and credit of the United States of America, in each case maturing
within 180 days from the date of acquisition.
"Change of Control" means (i) any merger or consolidation of the
Company with or into any Person, or any sale, transfer or other conveyance,
whether direct or indirect, of all or substantially all of the assets of the
Company in one transaction or a series or related transactions, if, immediately
after giving effect to such transaction or series of transactions, any "person"
or "group" (as such terms are used for purposes of Section 13(d) and 14(d) of
the Exchange Act as in effect on the Issue Date, whether or not applicable) is
or becomes the Beneficial Owner, directly or indirectly, of more than 40% of the
total voting power of all Voting Stock of the transferee or surviving Person
then outstanding, (ii) any such "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act as in effect on the
Issue Date, whether or not applicable) is or becomes the Beneficial Owner,
directly or indirectly, of more than 40% of the total voting power of all Voting
Stock of the Company then outstanding or (iii) at any time during any period of
12 consecutive months, individuals who at the beginning of any such 12-month
period constituted the Board of Directors of the Company
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cease for any reason to constitute a majority of the Board of Directors of the
Company then in office.
"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 ownership of voting securities (or pledge of voting
securities if the pledgee thereof may on the date of determination exercise or
control the exercise of the voting rights of the owner of such voting
securities), by contract or otherwise; and the terms "Controlling" and
"Controlled" have meanings correlative to the foregoing.
"Default" means any event or condition the occurrence of which would,
with the lapse of time or the giving of notice or both, become an Event of
Default with respect to the Notes.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor thereto.
"Fair Market Value" means, with respect to any property received by
the Company in connection with the issuance or sale of Capital Stock, or the
conversion or exchange of securities into Capital Stock, the fair market value
of such property as determined in good faith by the Board of Directors of the
Company (as evidenced by a Board Resolution), whose determination shall be
conclusive, net of attorneys' fees, accountants' fees and brokerage, consulting,
underwriting and other fees and expenses actually incurred in connection with
such transaction and net of taxes paid or payable as a result thereof; provided
that there shall be excluded from such computation the fair market value of any
property consisting of deferred payment obligations.
"Federal Reserve Board" means (i) the Board of Governors of the
Federal Reserve System or (ii) any successor thereto for the purpose of
regulating bank holding companies under federal law.
"Final Maturity Date" means August 15, 2007.
"Fixed Maturity," when used with respect to any Indebtedness, means
the date or dates specified in such Indebtedness as the fixed date or dates on
which any principal amount of such Indebtedness is due and payable (including,
without limitation, by reason of any required redemption, purchase, defeasance
or sinking fund payment) and, when used with respect to any installment of
interest on any Indebtedness, means the date on which such installment is due
and payable.
"Global Note" means a Note in book-entry form registered in the name
of The Depository Trust Company or its nominee or in the name of any successor
depositary for the Notes or any nominee of such successor.
"Guaranteed Indebtedness" of any specified Person means, without
duplication, all Indebtedness of any other Person guaranteed directly or
indirectly in any manner by such
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specified Person, or in effect guaranteed directly or indirectly by such
specified Person through an agreement (i) to pay or purchase such Indebtedness
or to advance or supply funds for the payment or purchase of such Indebtedness,
(ii) to purchase, sell or lease (as lessee or lessor) property, or to purchase
or sell services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such Indebtedness
against loss, (iii) to supply funds to, or in any other manner invest in, the
debtor (including any agreement to pay for property or services without
requiring that such property be received or such services be rendered), (iv) to
maintain working capital or equity capital of the debtor, or otherwise to
maintain the net worth, solvency or other financial condition of the debtor or
(v) otherwise to assure a creditor with respect to Indebtedness against loss;
provided that the term "guarantee" shall not include endorsements for collection
or deposit, in either case in the ordinary course of business.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit issued under letter of credit
facilities, (ii) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments, (iii) all indebtedness of such Person
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), but excluding trade
payables, (iv) all obligations under Interest Rate Agreements of such Person,
(v) all Capital Lease Obligations of such Person, (vi) all indebtedness and
obligations referred to in clauses (i) through (v) above of other Persons and
all dividends payable by other Persons, the payment of which is secured by (or
for which the holder of such indebtedness or other obligations or the Person
entitled to receive such dividends, as the case may be, has an existing right,
contingent or otherwise, to be secured by) any Lien upon or with respect to
property (including, without limitation, accounts and contract rights) of such
Person, even though such Person has not assumed or become liable for the payment
of such indebtedness, obligations or dividends, as the case may be (the amount
of such Indebtedness under this clause (vi) being deemed to be the lesser of the
fair market value (as determined in good faith by the Board of Directors of the
Company (as evidenced by a Board Resolution), whose determination shall be
conclusive) of such property or asset or the amount of the indebtedness,
obligations or dividends, as the case may be, so secured), (vii) all Guaranteed
Indebtedness of such Person (as guarantor), (viii) all Redeemable Capital Stock
(valued at the greater of book value and voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends) of such Person, and (ix) any
amendment, supplement, modification, deferral, renewal, extension, refunding or
refinancing or any liability of the types referred to in clauses (i) through
(viii) above. For purposes hereof, (a) the "maximum fixed repurchase price" of
any Redeemable Capital Stock which does not have a fixed repurchase price shall
be calculated in accordance with the terms of such Redeemable Capital Stock as
if such Redeemable Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to the terms of the
Notes, and if such price is based upon, or measured by, the fair market value of
such Redeemable Capital Stock, such fair market value shall be determined in
good faith by the board of directors (or any other duly authorized committee
thereof) of the issuer
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of such Redeemable Capital Stock, and (b) Indebtedness is deemed to be incurred
pursuant to a revolving credit facility, line of credit or similar facility each
time an advance is made thereunder.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Issue Date" means August 28, 1997, the date on which the Notes are
first issued.
"Junior Subordinated Indebtedness" means any Indebtedness of the
Company which ranks subordinate in right of payment to the Notes.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable,
tangible or intangible.
"Major Bank Subsidiary" means (i) with respect to the Company, (A) Bay
View Bank, a federal savings bank, and any successor to all or substantially all
of the business or assets of Bay View Bank, a federal savings bank (each
referred to herein as the "Bank"), in each case so long as the Bank shall be a
Subsidiary of the Company and (B) any Subsidiary of the Company which is a bank,
trust company, savings bank, savings and loan association or other banking or
thrift association the total assets of which (as determined by such Subsidiary's
most recent statement of financial condition) equal more than 75% of the total
assets of the Company (as determined by the Company's most recent consolidated
statement of financial condition) and (ii) with respect to any Successor Person,
(A) the Bank, so long as the Bank shall be a Subsidiary of such Successor Person
and (B) any Subsidiary of such Successor Person which is a bank, trust company,
savings bank, savings and loan association or other banking or thrift
association the total assets of which (as determined by such Subsidiary's most
recent statement of financial condition) equal more than 75% of the total assets
of the Successor Person (as determined by the Successor Person's most recent
consolidated statement of financial condition).
The foregoing definition of "Major Bank Subsidiary" shall apply with
respect to the Notes instead of, and insofar as it relates to the Notes, shall
supersede and replace the definition of such term set forth in the Indenture.
"Merger" means the merger of America First Eureka Holdings, Inc., a
Delaware corporation ("AFEH"), into the Company as contemplated by the Agreement
and Plan of Merger dated as of May 8, 1997 among the Company, AFEH and the other
parties thereto, as the same may be amended or supplemented from time to time.
"Net Cash Proceeds" means, with respect to any issuance or sale of
Capital Stock, or debt securities or Capital Stock that have been converted into
or exchanged for Capital Stock, the proceeds of such issuance or sale in the
form of cash or Cash Equivalents, including payments in respect of deferred
payment obligations when received in the form of cash or cash equivalents, net
of attorney's fees, accountant's fees and brokerage, consulting, underwriting
and other fees
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and expenses actually incurred in connection with such issuance or sale and net
of taxes paid or payable as a result thereof.
"Permitted Repurchase Provisions" means, with respect to any Capital
Stock of the Company or any Indebtedness of the Company, any provisions of such
Capital Stock or Indebtedness, as the case may be, which expressly require that
the Company make an offer to purchase such Capital Stock or Indebtedness, as the
case may be, upon the occurrence of a Change of Control or upon the sale or
other disposition of assets of the Company or any of its Subsidiaries. As used
in the preceding sentence, the term "Change of Control" means (i) any merger or
consolidation of the Company with or into any Person, or any sale, transfer or
other conveyance, whether direct or indirect, of all or substantially all of the
assets of the Company, in one transaction or a series of related transactions,
if, immediately after giving effect to such transaction or series of
transactions, any "person" or "group" (as such terms are used for purposes of
Section 13(d) and 14(d) of the Exchange Act, whether or not applicable) is or
becomes the beneficial owner, directly or indirectly, of more than a specified
percentage (as specified by the terms of the relevant Capital Stock or
Indebtedness, as the case may be) of the total voting power of all Voting Stock
of the transferee or surviving Person then outstanding, (ii) any such "person"
or "group" (as such terms are used for purposes of Sections 13(d) and 14(d) of
the Exchange Act, whether or not applicable) is or becomes the beneficial owner,
directly or indirectly, of more than a specified percentage (as specified by the
terms of the relevant Capital Stock or Indebtedness, as the case may be) of the
total voting power of all Voting Stock of the Company then outstanding, (iii) at
any time during any specified period of time, individuals who at the beginning
of any such period constituted the Board of Directors of the Company cease for
any reason to constitute a majority or other specified percentage (as specified
by the terms of the relevant Capital Stock or Indebtedness, as the case may be)
of the Board of Directors of the Company then in office, (iv) the Company is
liquidated or dissolves or adopts a plan of liquidation or dissolution, (v) any
sale, disposition or other transfer of all or substantially all or any
substantial part of the assets of the Company and its Subsidiaries, (vi) any
other change of control (as specified by the terms of the relevant Capital Stock
or Indebtedness, as the case may be) with respect to the Company, and (vii) any
event or condition which is similar to any of the foregoing.
"Principal Bank Subsidiary" means (i) with respect to the Company, (A)
Bay View Bank, a federal savings bank, and any successor to all or substantially
all of the business or assets of Bay View Bank, a federal savings bank, in each
case so long as it shall be a Subsidiary of the Company and (B) 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; and (ii) with respect to any Successor Person, (A) Bay View Bank, a
federal savings bank, and any successor to all or substantially all of the
business or assets of Bay View Bank, a federal savings bank, in each case so
long as it shall be a Subsidiary of such Successor Person and (B) any
Significant Subsidiary of such Successor Person which is a bank, trust company,
savings bank, savings and loan association, savings association or other banking
or thrift institution.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
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<PAGE>
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms or by the terms of any security into which it is convertible or
exchangeable or for which it is exercisable or otherwise, is or upon the
happening of an event or passage of time would be required to be redeemed or
repurchased by the Company prior to the Final Maturity Date or is redeemable at
the option of the holder thereof at any time prior to the Final Maturity Date or
is convertible into or exchangeable for debt securities at any time prior to the
Final Maturity Date at the option of the holder thereof; provided that Capital
Stock shall not be deemed to be Redeemable Capital Stock solely by virtue of the
existence of any Permitted Repurchase Provisions which are applicable to such
Capital Stock.
"Regulatory Capital Requirements" means (i) with respect to the
Company or any Principal Bank Subsidiary of the Company at any time, the minimum
amount of capital required for the Company (assuming for such purpose that the
Company is subject to regulation as a bank holding company under federal law,
whether or not the Company is in fact so subject) or such Principal Bank
Subsidiary, as the case may be, to be deemed to be "well capitalized" (or the
then equivalent category) or, solely for purposes of clause (c) of the first
paragraph under (b)(11)(d) hereof (Limitation on Consolidation, Merger and Sale
of Assets), "adequately capitalized" (or the then equivalent category) under
federal banking laws and regulations as then in effect and applicable to the
Company (assuming it is subject to regulation as a bank holding company as
aforesaid) or such Principal Bank Subsidiary, as the case may be, at such time;
and (ii) with respect to any Successor Person or any Principal Bank Subsidiary
of such Successor Person at any time, the minimum amount of capital required for
such Successor Person (assuming for such purpose that such Successor Person is
subject to regulation as a bank holding company under federal law, whether or
not it is in fact so subject) or such Principal Bank Subsidiary, as the case may
be, to be deemed to be "well capitalized" (or the then equivalent category) or,
solely for purposes of clause (c) of the first paragraph under (b)(11)(d) hereof
(Limitation on Consolidation, Merger and Sale of Assets), "adequately
capitalized" (or the then equivalent category) under federal banking laws and
regulations as then in effect and applicable to such Successor Person (assuming
it is subject to regulation as a bank holding company as aforesaid) or such
Principal Bank Subsidiary, as the case may be, at such time.
"Regulatory Event" means the Company is subject to the capital
adequacy guidelines of the Federal Reserve Board and the Federal Reserve Board
has advised the Company in writing that the Notes do not qualify as Tier 2
Capital (or the then equivalent thereof, if applicable) for purposes of the
capital adequacy guidelines of the Federal Reserve Board, as then in effect and
applicable to the Company.
"Securitization Entity" means any pooling arrangement or entity
(except for any entity in corporate or partnership form) formed or originated
for the purpose of holding, and issuing securities representing interests in,
one or more pools of mortgages, leases, credit card receivables, home equity
loan receivables, automobile loans, leases or installment sales contracts, other
consumer receivables or other financial assets of the Company or any of its
Subsidiaries, and shall include, without limitation, any grantor trust, owner's
trust or real estate mortgage investment conduit.
14
<PAGE>
"Successor Person" has the meaning set forth under (b)(11)(d) hereof
(Limitation on Consolidation, Merger and Sale of Assets).
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) which
has become publicly available at least two Business Days prior to the date fixed
for repayment (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to the then
remaining term to August 15, 2002; provided, however, that if the then remaining
term to August 15, 2002 is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that if the then remaining term to
August 15, 2002 is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one
year shall be used.
"Wholly Owned Subsidiary" means a Subsidiary of the Company all the
outstanding Capital Stock (other than directors' qualifying shares) of which are
owned by the Company and/or one or more other Wholly Owned Subsidiaries of the
Company.
(13) Section 1007 of the Indenture shall be applicable with respect to
the Limitation on Restricted Payments covenant set forth under (b)(11)(a)
hereof, the Limitation on Affiliate Transactions covenant set forth under
(b)(11)(b) hereof, the Reports covenant set forth under (b)(11)(c) hereof and
the Limitation on Consolidation, Merger and Sale of Assets covenant set forth
under (b)(11)(d) hereof, and such Limitation on Restricted Payments, Limitation
on Affiliate Transactions, Reports and Limitation on Consolidation, Merger and
Sale of Assets covenants shall also be subject to covenant defeasance pursuant
to Section 402(3) of the Indenture. The term "Principal Bank Subsidiary" shall
be substituted for the term "Major Bank Subsidiary" in Section 402(4)(b) of the
Indenture.
(14) Initial public offering price of Notes:
99.35% of the principal amount thereof, together with accrued
interest, if any, from August 28, 1997.
(15) Price at which the Notes shall be sold to the underwriters
pursuant to the Purchase Agreement dated August 22, 1997 (as a percentage of the
principal amount of the Notes):
96.60% of the principal amount thereof.
(16) The Notes will be in substantially the form attached hereto as
Exhibit A with such changes therein as may be approved by any officer of the
Company executing the Notes (whether by manual or facsimile signature) such
approval to be conclusively evidenced by the execution (by manual or facsimile
signature) of any such Notes, and the Notes shall have such
15
<PAGE>
additional terms as are set forth in the certificates evidencing the Notes,
which terms are hereby incorporated herein and in the Indenture by reference.
(17) SunTrust Bank, Central Florida, National Association shall be the
initial Trustee, Paying Agent, transfer agent and Security Registrar for the
Notes.
(18) Terms (whether or not capitalized) used in this Officers'
Certificate and not defined herein which are defined in the Indenture shall have
the respective meanings given them in the Indenture.
(19) Captions and headings in this Officers' Certificate are for
convenience of reference only and shall not affect the construction hereof.
(20) This Officers' Certificate shall be governed by and construed in
accordance with the laws of the State of New York applicable to instruments
entered into and performed in said State. This Officers' Certificate 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.
(21) Each of the undersigned hereby further certifies that the form
and terms of the Notes have been established pursuant to Sections 201 and 301 of
the Indenture and comply with the Indenture.
16
<PAGE>
Certified as of the date first written above.
[SEAL]
/s/ Edward H. Sondker
_______________________________________________
Edward H. Sondker
Director, President and Chief Executive Officer
/s/ Robert J. Flax
_______________________________________________
Robert J. Flax
Executive Vice President, General Counsel
and Secretary
<PAGE>
EXHIBIT 99.3
THESE SECURITIES ARE NOT DEPOSITS OR OBLIGATIONS OF A SAVINGS BANK OR SAVINGS
ACCOUNTS AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF.
THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS DEFINED BELOW)
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No.: R-1
CUSIP No.: 07262LAB7 Principal Amount: $100,000,000.00
BAY VIEW CAPITAL CORPORATION
9-1/8% Subordinated Notes due 2007
Bay View Capital Corporation, a Delaware corporation (hereinafter called
the "Company", which term includes any successor corporation under the Indenture
referred to below), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of ONE HUNDRED MILLION DOLLARS
($100,000,000.00) on August 15, 2007 and to pay interest thereon from August 28,
1997 or from the most recent date to which interest has been paid or duly
provided for, semiannually on February 15 and August 15 of each year (each, an
"Interest Payment Date"), commencing February 15, 1998, and at Maturity, at the
rate of 9.125% per annum, until the principal hereof is paid or duly made
available for payment. Interest on this Note shall be calculated on the basis
of a 360-day year consisting of twelve 30-day months. The interest so payable
and punctually paid or duly provided for on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the February 1 or
August 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder hereof on the relevant
Regular Record Date by virtue of having been such Holder, and may be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange
<PAGE>
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in such Indenture.
Payment of the principal of and premium, if any, and the interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in the place where the Corporate Trust Office of the Trustee shall from
time to time be located and, in the event that Notes in definitive certificated
form are issued in exchange for Notes in global form, in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that, at the option of the Company, interest
may be paid by check mailed 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 located in the United States.
This Note is one of a duly authorized issue of Securities of the Company
(herein called the "Notes") issued and to be issued in one or more series under
an Indenture dated as of August 28, 1997 (herein called, together with all
indentures supplemental thereto and the Officers' Certificate establishing the
form and terms of the Notes, the "Indenture") between the Company and SunTrust
Bank, Central Florida, National Association, as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes,
and the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face hereof,
limited (subject to exceptions provided in the Indenture) in aggregate principal
amount to $100,000,000.
Subject to Section 404 of the Indenture, the payment of the indebtedness
evidenced by this Note is, to the extent and in the manner set forth in the
Indenture, expressly subordinated to all Senior Indebtedness of the Company.
This Note is issued subject to such subordination provisions of the Indenture,
and each Holder of this Note, by accepting the same, agrees to and shall be
bound by such provisions and authorizes and directs the Trustee on his behalf,
as between the Holders of the Notes and the holders of Senior Indebtedness, to
take such action as may be necessary or appropriate to effectuate such
subordination as provided in the Indenture and appoints the Trustee his
attorney-in-fact for any and all such purposes.
The Notes shall be redeemable at the option of the Company (upon obtaining
the approval of the Federal Reserve Board, if required, in the event the Company
becomes a bank holding company), in whole or from time to time in part, at any
time on or after August 15, 2002, on not less than 30 nor more than 60 days'
prior written notice to each Holder of Notes to be redeemed, at the Redemption
Prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest, if any, to the relevant Redemption Date, if
redeemed during the 12-month period beginning on August 15 of the years
indicated below; provided that installments of interest on Notes whose Stated
Maturity is on or prior to the relevant Redemption Date shall be payable to the
Holders of such Notes (or one or more Predecessor Securities) registered as such
at the close of business on the relevant Regular Record Dates:
Redemption
Year Price
--------------------- -----------
2002................. 104.563%
2003................. 103.042%
2004................. 101.521%
2005 and thereafter.. 100.000%
In addition, at any time prior to August 15, 2002, the Notes will be
redeemable at the option of the Company, in whole or from time to time in part,
within 180 days of the occurrence of a Change of Control or a Regulatory Event,
on not less than 30 nor more than 60 days' prior written notice to each holder
of Notes to be
2
<PAGE>
redeemed, at a redemption price equal to the sum of (x) the principal amount
thereof, plus (y) accrued and unpaid interest, if any, to the applicable date of
redemption, plus (z) the Applicable Premium.
If an Event of Default under Section 501(5) or 501(6) of the Indenture
shall occur and be continuing, the principal of and accrued and unpaid interest
on the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of any series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Notes
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time, place and rate, and in the coin or currency,
herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Security
Register upon surrender of this Note for registration of transfer at the office
or agency of the Company maintained for the purpose pursuant to the Indenture,
duly endorsed, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in the
denominations of $1,000 and integral multiples of $1,000. As provided in the
Indenture and subject to certain limitations set forth therein, the Notes are
exchangeable for a like aggregate principal amount of Notes of authorized
denominations as requested by the Holders surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith, other than
in certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture requires that the Company comply with certain covenants,
including, without limitation, covenants restricting the ability of the Company
and its Subsidiaries to make certain Restricted Payments and to enter into
certain transactions with Affiliates, a covenant requiring the Company to
provide certain annual and quarterly reports to Holders of Notes, and a covenant
limiting the ability of the Company to consolidate with or merge into any Person
or to sell, assign, transfer, lease or otherwise convey all or substantially all
of its properties and assets to any Person. These covenants are subject to a
number of important qualifications and exceptions set forth in the Indenture.
3
<PAGE>
The Indenture contains provisions whereby (i) the Company may be
discharged from its obligations with respect to the Notes (subject to certain
exceptions) or (ii) the Company may be released from its obligations under
specified covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or Government Obligations sufficient
to pay and discharge the entire indebtedness on all Notes, and satisfies certain
other conditions, all as more fully provided in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Note which are defined in the Indenture and not
defined herein shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee under the Indenture by the manual signature of one
of its authorized signatories, this Note shall not be entitled to any benefits
under the Indenture or be valid or obligatory for any purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: August 28, 1997 Bay View Capital Corporation
[Seal] By: /s/ Edward H. Sondker
______________________________________
Edward H. Sondker
President and Chief Executive Officer
Attest: /s/ Robert J. Flax
________________________________________
Robert J. Flax
Executive Vice President, General Counsel
and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
SunTrust Bank, Central Florida, National Association,
as Trustee
By: /s/ Theresa Hawkins
____________________________________________
Authorized Signatory
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT- ______ Custodian ______
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of Under Uniform Gifts to Minors
survivorship and not as tenants Act_________________________
in common (State)
Additional abbreviations may also be used though not in the above list.
______________________________________
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________________________________
| |
| |
_____________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
________________________________________________________________________________
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
_______________________________________________________________________ Attorney
to transfer said security on the books of the Company with full power
of substitution in the premises.
Dated:__________________________________________________________________________
Notice: The signature to this assignment must correspond with the
name as it appears upon the face of the within security in every
particular, without alteration or enlargement or any change whatever.
