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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): December 21, 1998
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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 No.)
incorporation)
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 (650) 573-7300
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N/A
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(Former name or former address, if changed since last report.)
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BAY VIEW CAPITAL I
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 0-17901-01 APPLIED FOR
- --------------------------------------------------------------------------------
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
incorporation)
1840 GATEWAY DRIVE, SAN MATEO, CALIFORNIA 94404
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (650) 573-7300
--------------
N/A
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
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Item 5. Other Events
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Bay View Capital Corporation (the "Company") and Bay View Capital I
(the "Trust") hereby file the exhibits listed in Item 7 below in
connection with the sale by the Trust of 3,600,000 9.76% Cumulative
Capital Securities (the "Capital Securities"), completed on December
21, 1998.
Item 7. Financial Statements and Exhibits
---------------------------------
1 Underwriting Agreement, dated December 15, 1998, among the Company,
the Trust, Dain Rauscher Wessels, a division of Dain Rauscher
Incorporated, EVEREN Securities, Inc., Piper Jaffray Inc. and Sutro &
Co. Incorporated.
4.1 Amended and Restated Declaration of Trust of the Trust.
4.2 Guarantee Agreement with respect to the Capital Securities.
4.3 Indenture with respect to the Company's 9.76% Junior Subordinated
Deferrable Interest Debentures due December 31, 2028 (the
"Debentures").
4.4 First Supplemental Indenture with respect to the Debentures.
99 Press Release Announcing the Sale of the Capital Securities.
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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: December 22, 1998 By: /s/ Robert J. Flax
-------------------------------------
Robert J. Flax
Executive Vice President,
General Counsel and Secretary
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 I
Date: December 22, 1998 By: /s/ Robert J. Flax
--------------------------------------
Robert J. Flax
Trustee
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
1 Underwriting Agreement, dated December 15, 1998, among the Company,
the Trust, Dain Rauscher Wessels, a division of Dain Rauscher
Incorporated, EVEREN Securities, Inc., Piper Jaffray Inc. and Sutro &
Co. Incorporated.
4.1 Amended and Restated Declaration of Trust of the Trust.
4.2 Guarantee Agreement with respect to the Capital Securities.
4.3 Indenture with respect to the Company's 9.76% Junior Subordinated
Deferrable Interest Debentures due December 31, 2028 (the
"Debentures").
4.4 First Supplemental Indenture with respect to the Debentures.
99 Press Release Announcing the Sale of the Capital Securities.
</TABLE>
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EXHIBIT 1
3,200,000 CAPITAL SECURITIES
BAY VIEW CAPITAL I
9.76% CUMULATIVE CAPITAL SECURITIES
(LIQUIDATION PREFERENCE OF $25 PER CAPITAL SECURITY)
UNDERWRITING AGREEMENT
----------------------
December 15, 1998
Dain Rauscher Wessels, a division of
Dain Rauscher Incorporated
EVEREN Securities, Inc.
Piper Jaffray Inc.
Sutro & Co. Incorporated
c/o Dain Rauscher Incorporated
Dain Rauscher Plaza
60 South Sixth Street
Minneapolis, Minnesota 55402
Ladies and Gentlemen:
Bay View Capital Corporation, a Delaware corporation (the "Company"), and
its subsidiary, Bay View Capital I, a statutory business trust organized under
the Delaware Business Trust Act (the "Delaware Act") (the "Trust" and, together
with the Company, the "Offerors"), propose, subject to the terms and conditions
stated herein, to issue and sell to you (the "Underwriters"), an aggregate of
3,200,000 of the Trust's 9.76% Cumulative Capital Securities, with a liquidation
preference of $25.00 per capital security (the "Firm Securities"). In addition,
solely for the purpose of covering overallotments, the Trust proposes to issue
and sell, at the Underwriters' option, up to an additional 480,000 of the
Trust's 9.76% Cumulative Capital Securities, with a liquidation preference of
$25.00 per capital security (the "Additional Securities" and, together with the
Firm Securities, the "Capital Securities"). The Offerors propose that the
Trust issue the Capital Securities pursuant to an amended and restated
declaration of trust, by Wilmington Trust Company, as Property Trustee and
Delaware Trustee, the regular trustees named therein (the "Regular Trustees")
and the Company and by the holders from time to time of undivided beneficial
interests in the Trust (the "Declaration"). The Capital Securities will be
guaranteed by the Company (the "Guarantee") as set forth in a Guarantee
Agreement (the "Guarantee Agreement"), to be dated December 21, 1998, between
the Company and Wilmington Trust Company, as trustee (the "Guarantee Trustee").
The proceeds of the sale of the Capital Securities will be used to purchase
junior subordinated deferrable interest debentures (the "Junior Subordinated
Debentures") issued by the Company pursuant to that certain Indenture, to be
dated December 21, 1998, between the
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Company and Wilmington Trust Company, as trustee, as amended by the First
Supplemental Indenture thereto (collectively, the "Indenture").
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-64877) for the
registration of the Capital Securities, the Guarantee and the Junior
Subordinated Debentures under the Securities Act of 1933, as amended (the "Act")
and the rules and regulations thereunder and the qualification of the Indenture,
the Declaration and the Guarantee under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the rules and regulations thereunder.
The registration statement, as amended, at the time it was declared effective,
is herein referred to as the "Registration Statement." The term "Base
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Base Prospectus together with the prospectus
supplement (other than a preliminary prospectus supplement) relating to the
Capital Securities in the form filed by the Offerors with the Commission
pursuant to Rule 424 under the Act. The term "preliminary prospectus" means a
preliminary prospectus supplement relating to the Capital Securities together
with the Base Prospectus. References to the Registration Statement, the Base
Prospectus, the Prospectus and the Preliminary Prospectus include all
information incorporated therein by reference. Copies of the Registration
Statement, including all exhibits and schedules thereto, any amendments thereto
and all Preliminary Prospectuses have been delivered to the Underwriters.
The Offerors hereby confirm their agreement with respect to the purchase of
the Capital Securities by the Underwriters as follows:
1. Representations and Warranties of the Offerors.
----------------------------------------------
(a) The Offerors jointly and severally represent and warrant to, and
agree with, each of the Underwriters that:
(i) The Registration Statement has been declared effective under the
Act, and no post-effective amendment to the Registration Statement has been
filed with the Commission as of the date of this Agreement. No stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or, to the Company's
knowledge, threatened by the Commission.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
promulgated thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Offerors make no
representation or warranty as to information contained in or omitted in reliance
upon, and in conformity with, written information furnished to the Offerors by
or on behalf of any Underwriter, expressly for use in the preparation thereof.
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(iii) The Registration Statement and the Prospectus conform in all
material respects to the requirements of the Act and the rules and regulations
thereunder. Neither the Registration Statement, as of its effective date and
the date of any amendment thereto, nor the Prospectus contains any untrue
statement of a material fact or omits or will omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that the Offerors make no representation or warranty as to (i)
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Offerors by or on behalf
of any Underwriter, expressly for use in the preparation thereof or (ii)
information in those parts of the Registration Statement which constitute
Statements of Eligibility and Qualification ("Form T-1") under the Trust
Indenture Act. Each Preliminary Prospectus and the Prospectus will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Date Gathering, Analysis and Retrieval system
("EDGAR"), except to the extent permitted by Regulation S-T.
(iv) The documents of the Company incorporated by reference in the
Registration Statement and the Prospectus, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules
and regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and any further documents so filed and incorporated by reference
in the Registration Statement and the Prospectus or any further amendment or
supplement thereto, when such documents are filed with the Commission will
conform in all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
(v) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with full trust power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and is authorized to do business in each
jurisdiction in which such qualification is required, except where the failure
to so qualify would not have a material adverse effect on the Trust's condition
(financial or otherwise), earnings, business, prospects, assets, results of
operations or properties taken as a whole; the Trust has conducted and will
conduct no business other than the transactions contemplated by the Declaration
and described in the Prospectus; the Trust is not a party to or otherwise bound
by any agreement other than this Agreement and those described in the
Prospectus; the Trust is and will be classified for United States federal income
tax purposes as a grantor trust and not as an association taxable as a
corporation; and the Trust is and will be treated as a consolidated subsidiary
of the Company pursuant to generally accepted accounting principles.
(vi) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is duly
registered as a
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savings and loan holding company under the Home Owners' Loan Act (the "HOL Act")
supervised by the Office of Thrift Supervision (the "OTS"). The significant
subsidiaries of the Company are Bay View Bank (the "Bank"), Bay View Acceptance
Corporation ("BVAC"), Bay View Commercial Finance Group ("BVCF"), Bay View
Credit ("BVC"), Ultra Funding, Inc. (Ultra") and LFS-BV, Inc. ("LFS," and,
together with the Bank, BVAC and BVCF, BVC, Ultra and LFS, the "Subsidiaries").
The Bank is a capital stock savings bank having a valid charter from the federal
government of the United States. The Bank is a member in good standing of the
Federal Home Loan Bank of San Francisco. Each Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own or lease its properties and conduct its business as described
in the Prospectus; is, to the Company's knowledge, in compliance with all
federal and state regulatory rules and guidelines; and is duly qualified to
transact business in all jurisdictions in which the conduct of its business or
its ownership or leasing of property requires such qualification and the failure
so to qualify would have a material adverse effect on the business or condition,
financial or otherwise, of the Company and the Subsidiaries, taken as a whole.
All outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable, and are
owned, directly or indirectly, by the Company free and clear of all liens,
encumbrances and security interests, except as disclosed in the Registration
Statement and Prospectus. No options, warrants or other rights to purchase,
agreements or other obligations to issue, or other rights to convert any
obligations into, shares of capital stock or ownership interests in any of the
Subsidiaries are outstanding.
(vii) All of the issued and outstanding shares of capital stock of
the Company are duly authorized, validly issued, fully paid and nonassessable,
were offered and sold in compliance with all federal and state securities laws,
and were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities. Except as otherwise stated in
the Registration Statement and Prospectus, there are no preemptive rights or
other rights to subscribe for or to purchase, or any restriction upon the voting
or transfer of, the Junior Subordinated Debentures, the common securities of the
Trust held by the Company (the "Common Securities") or the Capital Securities.
Neither the filing of the Registration Statement nor the registration of the
Capital Securities, the Guarantee or the Junior Subordinated Debentures gives
rise to any rights for or relating to the registration of any capital stock or
other securities of the Company or the Trust. The Company has an authorized and
outstanding capitalization as set forth in the Registration Statement and the
Prospectus.
(viii) Each of this Agreement, the Indenture, the Declaration and
the Guarantee Agreement has been duly authorized, executed and delivered by the
Company and/or the Trust, as the case may be, and constitutes a valid, legal and
binding obligation of the Company and/or the Trust, as the case may be,
enforceable in accordance with its terms, except as rights to indemnity
hereunder may be limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity and, with respect to Section 7 hereof, by the public policy
underlying the federal or state securities laws. The execution, delivery and
performance of this Agreement, the Indenture, the Declaration and
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the Guarantee Agreement and the consummation of the transactions herein or
therein contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (x) any statute, any
indenture, mortgage, deed of trust, loan agreement, lease, franchise, license or
other agreement or instrument to which the Trust, the Company or any of the
Subsidiaries is a party or by which the Trust, the Company or any of the
Subsidiaries is bound or to which any property or assets of the Trust, the
Company or any of the Subsidiaries is subject or any order, rule, regulation,
order, agreement or decree of any court or governmental agency or body having
jurisdiction over the Company, any Subsidiary or the Trust or any of the
properties of the Company, any Subsidiary or the Trust, except for such
breaches, violations or defaults as would not have a material adverse effect on
(a) the business or condition (financial or otherwise) of the Company, the Trust
or any Subsidiary taken as a whole, (b) the issuance of the Capital Securities
and the Junior Subordinated Debentures or (c) the performance of the Company's
or the Trust's obligations under the Indenture, the Declaration and the
Guarantee or (y) the Company's or any Subsidiary's charter or bylaws or the
Declaration or the Trust's certificate of trust filed with the State of Delaware
on September 16, 1998 (the "Certificate of Trust") . No consent, approval,
authorization or order of, or filing with, any court or governmental agency or
body is required for the execution, delivery and performance of this Agreement,
the Indenture, the Declaration and the Guarantee Agreement or for the
consummation of the transactions contemplated hereby or thereby, including the
issuance or sale of the Junior Subordinated Debentures by the Company and the
Common Securities and the Capital Securities by the Trust, except such as may be
required under the Act, all of which have been obtained or made, and under state
securities or blue sky laws. Each of the Company and the Trust has full power
and authority to enter into this Agreement, the Indenture, the Declaration and
the Guarantee Agreement, as the case may be, and to authorize, issue and sell
the Junior Subordinated Debentures or the Common Securities and the Capital
Securities, as the case may be, as contemplated by this Agreement; and each of
the Indenture, the Declaration and the Guarantee Agreement has been duly
qualified under the Trust Indenture Act and will conform in all material
respects to the statements relating thereto in the Registration Statement and
the Prospectus.
(ix) The Junior Subordinated Debentures have been duly authorized by
the Company and at the Closing Date will have been duly executed by the Company
and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general principles of
equity, will be in the form contemplated by, and entitled to the benefits of,
the Indenture, will conform in all material respects to the statements relating
thereto in the Prospectus, and will be owned by the Trust free and clear of any
security interest, pledge, lien, encumbrance, claim or equity.
(x) The Common Securities have been duly authorized by the Declaration
and, when issued and delivered by the Trust to the Company against payment
therefor as described in the Prospectus, will be validly issued and (subject to
the terms of the Declaration) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust
5
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and will conform in all material respects to all statements relating thereto
contained in the Prospectus; and at the Closing Date all of the issued and
outstanding Common Securities of the Trust will be directly owned by the Company
free and clear of any security interest, pledge, lien, encumbrance, claim or
equity.
(xi) The Capital Securities have been duly authorized by the
Declaration and, when issued and delivered pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and fully
paid and non-assessable undivided beneficial interests in the Trust, will be
entitled to the benefits of the Declaration and will conform in all material
respects to the statements relating thereto contained in the Prospectus; and
holders of Capital Securities will be entitled to the same limitation of
personal liability under Delaware law as extended to stockholders of private
corporations for profit.
(xii) The Indenture, the Declaration and the Guarantee Agreement are
in substantially the respective forms filed as exhibits to the Registration
Statement.
(xiii) The Company's obligations under the Guarantee are subordinated
and junior in right of payment to all Senior and Subordinated Debt (as defined
in the Indenture) of the Company.
(xiv) The Junior Subordinated Debentures are subordinate and junior in
right of payment to all Senior and Subordinated Debt of the Company.
(xv) Each of the Regular Trustees of the Trust is an officer of the
Company and has been duly authorized by the Company to execute and deliver the
Declaration.
(xvi) The financial statements, together with the related notes and
schedules, contained or incorporated by reference in the Registration Statement
and Prospectus present fairly the consolidated financial position, results of
operations, shareholders' equity and cash flows of the Company and its
consolidated Subsidiaries on the basis stated therein at the indicated dates and
for the indicated periods. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as expressly stated therein, and all
adjustments necessary for a fair presentation of results for such periods have
been made, except as otherwise stated therein. The selected financial and
statistical data included in the Registration Statement present fairly the
information shown therein on the basis stated in the Registration Statement and
have been compiled on a basis consistent with the financial statements presented
therein.
(xvii) There is no action or proceeding pending or, to the knowledge
of the Trust or the Company, threatened or contemplated against any of the
Trust, the Company or any Subsidiary before any court or administrative or
regulatory agency which, if determined adversely to the Trust, the Company or
such Subsidiary would, individually or in the aggregate, result in a material
adverse change in the business or condition (financial or otherwise), results of
operations, shareholders' equity or prospects of the Trust, or of the Company
and it Subsidiaries taken as a whole, except as set forth in the Registration
Statement or the Prospectus.
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(xviii) There are no contracts or documents of the Trust or the
Company or any Subsidiary that are required by the Act or by the rules and
regulations thereunder to be filed as exhibits to the Registration Statement or
any document incorporated by reference therein which contracts or documents have
not been so filed.
(xix) The Company and the Subsidiaries have good and marketable title
to all properties and assets reflected as owned in the financial statements
hereinabove described (or as described as owned in the Prospectus), in each case
free and clear of all liens, encumbrances and defects, except such as are
described in the Prospectus or do not substantially affect the value of such
properties and assets and do not materially interfere with the use made and
proposed to be made of such properties and assets by the Company and the
Subsidiaries; and any real property and buildings held under lease by the
Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and the Subsidiaries.
(xx) Since the respective dates as of which information is given in
the Registration Statement, as it may be amended or supplemented, (A) there has
not been any material adverse change, or any development involving a prospective
material adverse change, in or affecting the condition, financial or otherwise,
of the Trust, or of the Company and the Subsidiaries taken as a whole, or the
business affairs, management, financial position, shareholders' equity or
results of operations of the Trust, or of the Company and the Subsidiaries taken
as a whole, whether or not occurring in the ordinary course of business,
including, without limitation, any material increase in delinquencies or the
amount or number of classified assets of the Bank, any decrease in net interest
margin (including automobile leases) for any month to a level below 3.10%, or
any material decrease in the volume of loan originations, after taking into
account normal seasonality, the amount of deposits or the amount of loans, (B)
there has not been any transaction not in the ordinary course of business
entered into by the Trust, the Company or any of the Subsidiaries which is
material to the Trust, or the Company and the Subsidiaries taken as a whole,
other than transactions described or contemplated in the Registration Statement,
(C) the Trust, the Company and the Subsidiaries have not incurred any material
liabilities or obligations, which are not in the ordinary course of business or
which could result in a material reduction in the future earnings of the Trust,
or the Company and the Subsidiaries taken as a whole, (D) the Trust, the Company
and the Subsidiaries have not sustained any material loss or interference with
their respective businesses or properties from fire, flood, windstorm, accident
or other calamity, whether or not covered by insurance, (E) there has not been
any change in the capital stock of the Company or the Subsidiaries (other than
upon the exercise of options and warrants described in the Registration
Statement), or any material increase in the short-term or long-term debt (other
than the Junior Subordinated Debentures) (including capitalized lease
obligations) of the Company and the Subsidiaries taken as a whole, and (F) there
has not been any declaration or payment of any dividends or any distributions of
any kind with respect to the capital stock of the Company or the Subsidiaries
other than any dividends or distributions described or contemplated in the
Registration Statement and the Company's regular quarterly common stock
dividend.
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(xxi) Neither the Company nor any of the Subsidiaries is in
violation of its respective charter or bylaws; the Trust is not in violation of
the Declaration or its Certificate of Trust; and none of the Trust, the Company,
or the Subsidiaries is in violation of or otherwise in default under any
statute, or any rule, regulation, order, supervisory agreement, judgment, decree
or authorization of any court or governmental or administrative agency or body
having jurisdiction over the Trust, the Company or any of the Subsidiaries or
any of their properties, or any indenture, mortgage, deed of trust, loan
agreement, lease, franchise, license or other agreement or instrument to which
the Trust, the Company or any of the Subsidiaries is a party or by which any of
them are bound or to which any property or assets of the Trust, the Company or
any of the Subsidiaries is subject, which violation or default would have a
material adverse effect on the business, condition (financial or otherwise),
results of operations, shareholders' equity or prospects of the Trust, or of the
Company and the Subsidiaries taken as a whole.
(xxii) The Trust, the Company and each of the Subsidiaries holds
and is operating in compliance in all material respects with all licenses,
approvals, certificates and permits from governmental and regulatory authorities
which are necessary to the conduct of its business as described in the
Prospectus. Without limiting the generality of the foregoing, the Company has
all necessary federal or state approvals to own the stock of the Subsidiaries.
None of the Trust, the Company or any Subsidiary has received notice of or has
knowledge of any basis for any proceeding or action relating specifically to the
Trust, the Company or the Subsidiaries for the revocation or suspension of any
such consent, authorization, approval, order, license, certificate or permit or
any other action or proposed action by any regulatory authority having
jurisdiction over the Trust, the Company or the Subsidiaries that would have a
material adverse effect on the Trust, the Company or any Subsidiary.
(xxiii) Deloitte & Touche LLP, which have certified certain of the
financial statements filed with the Commission as part of the Registration
Statement, and KPMG Peat Marwick, LLP are each independent public accountants
with respect to the Company as required by the Act and the rules and regulations
thereunder.
(xxiv) The Offerors have not taken and will not take, directly or
indirectly, any action designed to, or which has constituted, or which might
reasonably be expected to cause or result in, stabilization or manipulation of
the price of the Capital Securities.
(xxv) The Offerors' registration statement pursuant to Section
12(g) of the Exchange Act with respect to the Capital Securities, has been
declared effective by the Commission; and the Capital Securities have been
approved for designation upon notice of issuance on the Nasdaq National Market
under the symbol "BVCCP."
(xxvi) The Offerors have not distributed and will not distribute
any prospectus or other offering material in connection with the offering and
sale of the Capital Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Company.
(xxvii) The deposit accounts of the Bank are insured by the Federal
Deposit Insurance Corporation (the "FDIC") to the fullest extent provided by
law. No
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proceeding for the termination of such insurance is pending or , to the
knowledge of the Company, is threatened. Neither the Company nor any Subsidiary
has received or is subject to any directive, order or supervisory agreement or
arrangement from the OTS, the FDIC, or any other regulatory authority to make
any material change in the method of conducting their respective businesses that
has not been complied with in all material respects.
(xxviii) The Offerors are in material compliance with all provisions
of Florida Statutes Section 517.075 (Chapter 92-198, laws of Florida). Neither
of the Offerors nor any of their affiliates does any business, directly or
indirectly, with the government of Cuba or with any person or entity located in
Cuba.
(xxix) The Trust, the Company and the Subsidiaries have filed all
federal, state, local and foreign tax returns or reports required to be filed
(including extensions), and have paid in full all taxes indicated by said
returns or reports and all assessments received by it or any of them to the
extent that such taxes have become due and payable (including extensions),
except where the Trust, the Company and the Subsidiaries are contesting in good
faith such taxes and assessments. The Company and the Subsidiaries have also
filed all required applications, reports, returns and other documents and
information with all state and federal savings bank authorities and agencies.
(xxx) The Trust, the Company and each of the Subsidiaries owns or
licenses all patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service mark registrations, copyrights,
licenses, inventions, trade secrets and other similar rights necessary for the
conduct of their businesses as described in the Prospectus, except where the
failure to so own would not have a material adverse effect on the Trust, the
Company or any Subsidiary, taken as a whole. Neither the Trust nor the Company
has any knowledge of any infringement by them or the Subsidiaries of any
patents, patent applications, trademarks, service marks, tradenames, trademark
registrations, service mark registrations, copyrights, licenses, inventions,
trade secrets or other similar rights of others, and none of the Trust, the
Company or any of the Subsidiaries has received any notice or claim of conflict
with the asserted rights of others with respect to any of the foregoing.
(xxxi) None of the Trust, the Company or any of the Subsidiaries is
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or an
"investment adviser" within the meaning of the Investment Advisers Act of 1940,
as amended.
(xxxii) The Company and its Subsidiaries maintain, and the Trust
will maintain, a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with
management's general or specific authorization; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (C) access to records is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability for
assets is
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compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxxiii) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred any
liability for any finder's or broker's fee or agent's commission in connection
with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(xxxiv) No report or application filed by the Company or any of its
Subsidiaries with the OTS, the FDIC, the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), the Office of the Comptroller of
the Currency (the "OCC") or any other regulatory authority, as of the date it
was filed or amended, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading when made or failed to comply in all
material respects with the applicable requirements of the OTS, the FDIC, the
Federal Reserve Board, the OCC or any other regulatory authority, as the case
may be.
(xxxv) Based upon current guidelines of the Federal Reserve Board,
the Junior Subordinated Debentures will constitute "tier 1" capital (as defined
in 12 C.F.R. Part 225), subject to applicable regulatory restrictions on the
amount thereof that can be included in tier 1 capital.
(xxxvi) The Offerors meet all of the requirements for the use of Form
S-3 to register the Capital Securities, the Guarantee and the Junior
Subordinated Debentures under the Act.
(b) Any certificate signed by or on behalf of the Trust or the Company
and delivered to the Underwriters or counsel to the Underwriters shall be deemed
to be a representation and warranty of the Trust or the Company to each
Underwriter as to the matters covered thereby.
2. Purchase, Sale and Delivery of Capital Securities. On the basis of
-------------------------------------------------
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Trust agrees to issue and sell to
each Underwriter, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Trust, at a purchase price per Capital Security of
$25.00, the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule A hereto.
In addition, on the basis of the representations and warranties and the
other terms and conditions herein set forth, the Trust hereby grants to the
several Underwriters an option to purchase, and the Underwriters shall have the
right to purchase, severally and not jointly, from the Trust all or a portion of
the Additional Securities as may be necessary to cover over allotments made in
connection with the offering of the Firm Securities, at the same purchase price
per security to be paid by the several Underwriters to the Trust for the Firm
Securities. This option may be exercised in whole or in part one time on or
before the thirtieth day following the date hereof, by written notice to the
Trust. Any such notice shall set forth the aggregate
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number of Additional Securities as to which the option is being exercised, and
the date and time when the Additional Securities are to be delivered (any such
date and time being herein referred to as the "Additional Closing Date");
provided, however, that no Additional Closing shall occur earlier than the
Closing Date (as defined below) nor earlier than the second nor later than the
eighth business day after any date on which the option is exercised. The number
of Additional Securities to be sold to each Underwriter at the Additional
Closing shall be the number which bears the same proportion to the aggregate
number of Additional Securities being purchased at such Additional Closing as
the number of Firm Securities set forth opposite the name of such Underwriter on
Schedule A bears to the total number of Firm Securities (subject, in each case,
to adjustment as you may determine to eliminate fractional securities).
As compensation to the Underwriters for their commitments hereunder and in
view of the fact that the proceeds of the sale of the Capital Securities
(together with the entire proceeds from the sale by the Trust to the Company of
the Common Securities) will be used to purchase the Junior Subordinated
Debentures, the Company hereby agrees to pay at the Closing Date to the
Underwriters a commission of $1.00 per Capital Security sold by the Trust
hereunder.
The Firm Securities will be delivered by the Company to the Underwriters
against payment of the purchase price therefor at the offices of Gibson, Dunn &
Crutcher LLP, One Montgomery Street, Telesis Tower, 31st Floor, San Francisco,
California, or such other location as may be mutually acceptable, at 7:00 a.m.
Pacific time on December 21, 1998, or such other time and date as the
Underwriters and the Company may agree upon in writing, such time and date of
delivery being herein referred to as the "Closing Date." The purchase price
shall be payable by wire transfer of immediately available funds to an account
designated by the Trust at least two business days preceding the Closing Date.
The Underwriters' commission shall be payable by wire transfer of immediately
available funds to an account designated by the Underwriters at least two
business days preceding the Closing Date. Delivery of the Firm Securities may
be made by credit through full fast transfer to the accounts at The Depository
Trust Company ("DTC") designated by the Underwriters. Certificates representing
the Firm Securities, in definitive form and in such denominations and
registered in such names as the Underwriters may request upon at least two
business days' prior notice to the Company shall be prepared and will be made
available for checking and packaging, not later than 10:30 a.m., Central time,
on the business day next preceding the Closing Date at the offices of Dain
Rauscher Incorporated, Dain Rauscher Plaza, 60 South Sixth Street, Minneapolis,
Minnesota, or such other location as may be mutually acceptable.
The Additional Securities will be delivered by the Company to the
Underwriters against payment of the purchase price therefor at any Additional
Closing in the same manner as the payment for the Firm Securities. The
Underwriters' commission shall be payable in the same manner as the payment of
the Underwriters' Commission for the Firm Securities.
It is understood that any Underwriter may (but shall not be obligated to)
make payment to the Company on behalf of the other Underwriter for the
Securities to be purchased by such Underwriter. Any such payment shall not
relieve such other Underwriter of any of its obligations
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hereunder. Nothing herein contained shall constitute the Underwriters as an
unincorporated association or partner with either or both Offerors.
3. Offering by Underwriters. It is understood that the several
------------------------
Underwriters propose to make a public offering of the Capital Securities as soon
as the Underwriters deem it advisable to do so. The Capital Securities are to
be initially offered to the public at the initial public offering price set
forth in the Prospectus. The Underwriters may from time to time thereafter
change the public offering price and other selling terms.
4. Covenants of the Offerors. The Offerors jointly and severally
-------------------------
covenant and agree with the several Underwriters that:
(a) The Offerors will not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Underwriters shall not
previously have been advised and furnished with a copy and as to which the
Underwriters shall have reasonably objected in writing promptly after reasonable
notice thereof or which is not in compliance with the Act or the rules and
regulations thereunder.
(b) The Offerors will advise the Underwriters promptly of any request
of the Commission for amendment of the Registration Statement or for supplement
to the Prospectus or for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus, of the suspension of the qualification
of the Capital Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for that purpose, and the Offerors
will use their best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus or suspending such
qualification and to obtain as soon as possible the lifting thereof, if issued.
(c) The Offerors will cooperate with the Underwriters and the
Underwriter's counsel in order to qualify the Capital Securities for sale under
the securities laws of such jurisdictions as the Underwriters may reasonably
have designated in writing and to continue such qualifications in effect for so
long as the Underwriters may reasonably request for distribution of the Capital
Securities (or obtain exemptions from the application of such laws), provided
that neither Offeror shall be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction where it is not
now so qualified or required to file such a consent. The Offerors will, from
time to time, prepare and file such statements, reports and other documents as
may be requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies of
any Preliminary Prospectus as the Underwriters may reasonably request and,
during the period when delivery of a prospectus is required under the Act, the
Offerors will furnish the Underwriters with as many copies of the Prospectus in
final form, or as thereafter amended or supplemented, as the Underwriters may,
from time to time, reasonably request. The Offerors will deliver to the
Underwriters, at or before the Closing Date, two conformed copies of the
Registration Statement and all amendments thereto including all exhibits filed
therewith, and will deliver to the
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Underwriters such number of conformed copies of the Registration Statement,
without exhibits, and of all amendments thereto, as the Underwriters may
reasonably request.
(e) If, during the period in which a prospectus is required by law to
be delivered by an Underwriter or dealer, any event shall occur as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, not misleading, or if for
any other reason it shall be necessary at any time to amend or supplement the
Prospectus to comply with any law, the Offerors promptly will prepare and file
with the Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein in
light of the circumstances when it is so delivered, not misleading, or so that
the Prospectus will comply with law.
(f) The Offerors will make generally available to their security
holders, as soon as it is practicable to do so, but in any event not later than
18 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 thereunder and will advise the
Underwriters in writing when such statement has been so made available.
(g) The Company will, for five years from the Closing Date, deliver to
each Underwriter, as soon as they are available, copies of its annual report and
copies of all other documents, reports and information furnished by the Company
to its security holders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or the
Exchange Act. The Company will deliver to each Underwriter similar reports with
respect to significant subsidiaries, as that term is defined in the rules and
regulations under the Act, which are not consolidated in the Company's financial
statements.
(h) The Offerors will apply the net proceeds from the sale of the
Junior Subordinated Debentures and the Capital Securities substantially in
accordance with the purposes set forth under "Use of Proceeds" in the
Prospectus.
(i) The Offerors will use their best efforts to maintain the
designation of the Capital Securities on the Nasdaq National Market.
5. Costs and Expenses.
------------------
(a) The Offerors will pay (directly or by reimbursement) all costs,
expenses and fees incident to the performance of the obligations of the Offerors
under this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Offerors; the fees and
disbursements of counsel for the Offerors; the cost of preparing, printing
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and filing of the Registration Statement, the Base Prospectus, the Preliminary
Prospectus(es) and the Prospectus and any amendments and supplements thereto and
the printing, mailing and delivery to the Underwriters and dealers of copies
thereof and of this Agreement, any selected dealers agreement, any blue sky
memorandum and any supplements or amendments thereto (excluding, except as
provided below, fees and expenses of counsel to the Underwriters); the filing
fees of the Commission; the filing fees and expenses (including legal fees and
disbursements of counsel for the Underwriters) incident to securing any required
review by the NASD of the terms of the sale of the Capital Securities; the fees
and expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee in connection with the Indenture and Junior
Subordinated Debentures; the fees and expenses of the Property Trustee and the
Delaware Trustee, including the fees and disbursements of counsel for the
Property Trustee and the Delaware Trustee in connection with the Declaration and
the Certificate of Trust; the fees and expenses of the Guarantee Trustee,
including the fees and disbursements of counsel for the Guarantee Trustee in
connection with the Guarantee and Guarantee Agreement; listing fees, if any,
transfer taxes and the expenses, including the fees and disbursements of counsel
for the Underwriters, incurred in connection with the qualification of the
Capital Securities under state securities or Blue Sky laws; the fees and
expenses incurred in connection with the designation of the Capital Securities
on the Nasdaq National Market; the costs of preparing certificates representing
Junior Subordinated Debentures or Capital Securities; the costs and fees of any
registrar or transfer agent and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 5. Notwithstanding anything to the contrary in the
foregoing sentence, the Offerors shall not be required to pay more than an
aggregate of (i) $20,000 of fees and expenses (x) related to qualification of
the Capital Securities under state securities or Blue Sky laws or (y) incident
to securing any required review by the NASD of the terms of the sale of the
Capital Securities or (ii) $10,000 of fees and expenses of the Guarantee
Trustee, including the fees and disbursements of counsel for the Guarantee
Trustee in connection with the Guarantee and Guarantee Agreement. The Offerors
shall not be required to pay for any of the Underwriters' expenses (other than
those related to qualification of the Capital Securities under state securities
or Blue Sky laws and those incident to securing any required review by the NASD
of the terms of the sale of the Capital Securities which shall be paid by the
Offerors as provided above) except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Underwriters pursuant to Section
9(b) hereof, or by reason of any failure, refusal or inability on the part of
the Offerors to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on either of their parts to
be performed, unless such failure to satisfy said condition or to comply with
said terms shall be due to the default or omission of any Underwriter, then the
Offerors promptly upon request by the Underwriters shall reimburse the several
Underwriters for all actual, accountable out-of-pocket expenses, including fees
and disbursements of counsel reasonably incurred in connection with
investigating, marketing and proposing to market the Capital Securities or in
contemplation of performing their obligations hereunder; but the Offerors shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Capital
Securities.
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(b) Upon successful completion of the offering contemplated by this
Agreement, the Offerors will pay all reasonable and customary costs, expenses
and fees incident to tombstone advertisements of the offering and incurred with
the approval of the Company.
6. Conditions of Obligations of the Underwriters.
---------------------------------------------
The several obligations of the Underwriters to purchase the Capital
Securities on the Closing Date are subject to the condition that all
representations and warranties of the Offerors contained herein are true and
correct, at and as of the Closing Date, and the condition that each Offeror
shall have performed all of its covenants and obligations hereunder and to the
following additional conditions:
(a) The Prospectus Supplement shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof (or any required post-effective amendment to the
Registration Statement shall have been filed and declared effective in
accordance with the requirements of Rule 430A); no stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, or
any part thereof shall have been issued and no proceedings for that purpose
shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of the Underwriters.
(b) The Underwriters shall have received on the Closing Date and any
Additional Closing Date the opinions of Silver, Freedman & Taff, L.L.P., counsel
for the Offerors, dated the Closing Date or the Additional Closing Date, as the
case may be, addressed to the Underwriters, in the form attached hereto as
Exhibit 1.
- ---------
Such counsel shall also state that on the basis of such counsel's review
and participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, such counsel has no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Offerors prior to the Closing Date, including any
document incorporated by reference in the Registration Statement, as the case
may be (other than the financial statements, other financial and statistical
data and related schedules therein, as to which such counsel need express no
statement) contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Offerors prior to the
Closing Date, including any document incorporated by reference in the Prospectus
(other than the financial statements, other financial and statistical data and
related schedules therein, as to which such counsel need express no statement)
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading or that, as of the Closing Date, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Offerors prior to the Closing Date (other than the financial
statements, other financial and statistical data and related schedules therein,
as to which such counsel need express no statement) contains an untrue statement
of a
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material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
and they do not know of any amendment to the Registration Statement (or any
document incorporated therein by reference) required to be filed.
In rendering the above opinions, counsel may rely (i) as to matters of
law other than federal law, upon the opinion or opinions of local counsel
provided that the extent of such reliance is specified in such opinion and that
such counsel shall state that such opinion or opinions of local counsel are
satisfactory to them and they believe they and the Underwriters are justified in
relying thereon and (ii) as to matters of fact, upon the representations of the
Trust and the Company contained in this Agreement and upon certificates of
trustees or officers of the Trust, the Company and of public officials.
(c) The Underwriters and Gibson, Dunn & Crutcher LLP, counsel to the
Underwriters, shall have received on the Closing Date and any Additional Closing
Date a letter from Silver, Freedman & Taff, L.L.P., stating that the
Underwriters and Gibson, Dunn & Crutcher LLP may rely upon the opinion of such
firm addressed to SunTrust Bank, Central Florida, National Association, dated
October 30, 1998, as if such opinion was addressed directly to the Underwriters
and Gibson, Dunn & Crutcher LLP.
(d) The Underwriters shall have received on the Closing Date and any
Additional Closing Date the opinion of Richards, Layton & Finger, counsel to
Wilmington Trust Company, as Property Trustee under the Declaration, Indenture
Trustee under the Indenture, and Guarantee Trustee under the Guarantee
Agreement, dated the Closing Date or the Additional Closing Date, as the case
may be, addressed to the Underwriters, to the effect that:
(i) Wilmington Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of the State
of Delaware.
(ii) Wilmington Trust Company has the power and authority to execute,
deliver and perform its obligations under the Declaration, the Indenture and the
Guarantee Agreement.
(iii) Each of the Declaration, the Indenture and the Guarantee
Agreement has been duly authorized, executed and delivered by Wilmington Trust
Company and constitutes a legal, valid and binding obligation of Wilmington
Trust Company, enforceable against Wilmington Trust Company, in accordance with
its terms.
(iv) The execution, delivery and performance by Wilmington Trust
Company of the Declaration, the Indenture and the Guarantee Agreement do not
conflict with or constitute a breach of the charter or by-laws of Wilmington
Trust Company.
(v) No consent, approval or authorization of, or registration with or
notice to, any governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers of Wilmington
Trust Company is required for the
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execution, delivery or performance by Wilmington Trust Company of the
Declaration, the Indenture and the Guarantee Agreement.
(e) The Underwriters shall have received on the Closing Date and any
Additional Closing Date the opinion of Richards, Layton & Finger, as special
Delaware counsel for the Offerors, dated the Closing Date or the Additional
Closing Date, as the case may be, addressed to the Underwriters, to the effect
that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and all filings required as
of the date hereof under the Delaware Act with respect to the creation and valid
existence of the Trust as a business trust have been made.
(ii) Under the Declaration and the Delaware Act, the Trust has the
trust power and authority to own property and to conduct its business, all as
described in the Prospectus.
(iii) The Declaration constitutes a valid and binding obligation of
the Company, the Property Trustee and each of the Regular Trustees, and is
enforceable against the Company, the Property Trustee and each of the Regular
Trustees in accordance with its terms.
(iv) Under the Declaration and the Delaware Act, the Trust has the
trust power and authority (i) to execute and deliver, and to perform its
obligations under, this Agreement, and (ii) to issue, and to perform its
obligations under, the Capital Securities and the Common Securities.
(v) Under the Declaration and the Delaware Act, the execution and
delivery by the Trust of this Agreement, and the performance by the Trust of its
obligations under this Agreement, have been duly authorized by all necessary
trust action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached to the
Declaration as Exhibit E is an appropriate form of certificate to evidence
ownership of the Capital Securities. The Capital Securities have been duly
authorized by the Declaration and are duly and validly issued and, subject to
the qualifications hereinafter expressed in this paragraph (vi), fully paid and
non-assessable undivided beneficial interests in the assets of the Trust and are
entitled to the benefits of the Declaration. The Common Securities have been
duly authorized by the Declaration and are duly and validly issued undivided
beneficial interests in the assets of the Trust and are entitled to the benefits
of the Declaration. The holders of the Capital Securities, as beneficial owners
of the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. Such counsel may note that
the respective holders of the Capital Securities may be obligated, pursuant to
the Declaration, to make certain payments under the Declaration.
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(vii) Under the Declaration and the Delaware Act, the issuance of
the Capital Securities and the Common Securities is not subject to preemptive or
similar rights.
(viii) The issuance and sale by the Trust of the Capital Securities
and the Common Securities, the purchase by the Trust of the Junior Subordinated
Debentures, the execution, delivery and performance by the Trust of this
Agreement and the Guarantee Agreement, the consummation by the Trust of the
transactions contemplated by this Agreement and compliance by the Trust with its
obligations under this Agreement do not violate (a) any of the provisions of the
Certificate of Trust or the Declaration, or (b) any applicable Delaware law or
Delaware administrative regulation.
(f) The Underwriters shall have received from Gibson, Dunn & Crutcher,
LLP, counsel for the Underwriters, an opinion dated the Closing Date or the
Additional Closing Date, as the case may be, with respect to the formation of
the Trust, the validity of the Capital Securities, the Indenture, the
Declaration, the Guarantee Agreement, this Agreement, the Registration
Statement, the Prospectus, and other related matters as the Underwriters may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters. In rendering the above opinions, counsel may rely (i) as to matters of
law other than federal law, upon the opinion or opinions of local counsel
provided that the extent of such reliance is specified in such opinion and (ii)
as to matters of fact, upon the representations of the Trust and the Company
contained in this Agreement and upon certificates of trustees or officers of the
Trust, the Company and of public officials.
(g) The Underwriters shall have received on each of the date hereof
and the Closing Date and any Additional Closing Date signed letters, dated as of
the date hereof and the Closing Date or the Additional Closing Date, as the case
may be, in form and substance reasonably satisfactory to the Underwriters, from
each of Deloitte & Touche LLP and KPMG Peat Marwick LLP, to the effect that they
are independent public accountants with respect to the Trust, the Company and
the Subsidiaries within the meaning of the Act and the related rules and
regulations and containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(h) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date or the Additional Closing Date, as the case may be,
there shall not have been any change, or any development involving a reasonably
foreseeable change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Offerors
otherwise than as set forth or contemplated in the Prospectus, the effect of
which, in the Underwriters' reasonable judgment, is material and adverse to the
Offerors and makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Capital Securities being delivered at the
Closing Date or the Additional Closing Date, as the case may be, on the terms
and in the manner contemplated in the Prospectus.
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(i) The Underwriters shall have received on the Closing Date and any
Additional Closing Date a certificate or certificates of the chief executive
officer and the chief financial officer of the Company, to the effect that, as
of the Closing Date or the Additional Closing Date, as the case may be, each of
them severally represents as follows:
(i) The Prospectus Supplement was filed with the Commission
pursuant to Rule 424(b) within the applicable period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section 4 of
this Agreement; no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been
initiated or are, to his knowledge, threatened by the Commission.
(ii) The representations and warranties of the Company set forth
in Section 1 of this Agreement are true and correct at and as of the Closing
Date or the Additional Closing Date, as the case may be, and the Company has
performed all of its obligations under this Agreement to be performed at or
prior to the Closing Date or the Additional Closing Date, as the case may be.
(j) The Underwriters shall have received on the Closing Date and any
Additional Closing Date a certificate or certificates of the Regular Trustees,
to the effect that, as of the Closing Date or the Additional Closing Date, as
the case may be, each of them severally represents as follows:
(i) The Prospectus Supplement was filed with the Commission
pursuant to Rule 424(b) within the applicable period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section 4 of
this Agreement; no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been
initiated or are, to his knowledge, threatened by the Commission.
(ii) The representations and warranties of the Trust set forth in
Section 1 of this Agreement are true and correct at and as of the Closing Date
or the Additional Closing Date, as the case may be, and the Trust has performed
all of its obligations under this Agreement to be performed at or prior to the
Closing Date or the Additional Closing Date, as the case may be.
(k) Between the execution and delivery of this Agreement and the
Closing Date, there shall not have occurred a downgrading in the rating assigned
to the Capital Securities or any of the Company's other securities by Moody's
Investor Services and Standard & Poor's Corporation, and neither such rating
organization shall have publicly announced that is has under surveillance or
review, with possible negative implications, its rating of the Capital
Securities or any of the Company's other securities.
(l) The Offerors shall have furnished to the Underwriters such further
certificates and documents as the Underwriters may reasonably have requested.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects reasonably
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satisfactory to the Underwriters and to Gibson, Dunn & Crutcher LLP, counsel for
the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Underwriters by notifying the Trust of such termination in writing or by
telegram at or prior to the Closing Date. In such event, the Trust and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 7 hereof).
7. Indemnification.
---------------
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each officer and director thereof, and each person,
if any, who controls any Underwriter within the meaning of the Act, against any
losses, claims, damages or liabilities to which such Underwriter or such persons
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus, including any amendments or supplements thereto,
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not misleading
in light of the circumstances under which they were made, or (iii) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Capital Securities or the
offering contemplated hereby, and which is included as part of or referred to in
any losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arising out of or based upon matters covered by clause (i) or (ii)
above, and will reimburse each Underwriter and each such controlling person for
any legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Offerors
shall not be liable (1) in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission, made in the
Registration Statement, any Preliminary Prospectus or the Prospectus, including
any amendments or supplements thereto, in reliance upon and in conformity with
written information furnished to the Offerors by any Underwriter specifically
for use therein or (2) in the case of any matter covered by clause (iii) above
to the extent that it is determined in a final judgment by a court of competent
jurisdiction that such losses, claims, damages or liabilities resulted directly
from any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Offerors and the trustees and directors and officers who have signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Offerors or any such person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
20
<PAGE>
actions or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and will reimburse any legal or
other expenses reasonably incurred by the Offerors or any such person in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that each Underwriter will be liable
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Trust or the Company by or through the Underwriters
specifically for use therein. The obligations of the Underwriters under this
Section 7(b) are several in proportion to their respective underwriting
obligations and not joint.
(c) The Company agrees to indemnify the Trust against all loss,
liability, claim damage and expense whatsoever, which may become due from the
Trust under subsection (a).
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity or
contribution may be sought pursuant to this Section 7, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 7(a) or (b) or contribution provided for
in Section 7(e) shall be available with respect to a proceeding to any party who
shall fail to give notice of such proceeding as provided in this Section 7(d) if
the party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the indemnifying
party or parties from any liability which it or they may have to the indemnified
party otherwise than on account of the provisions of Section 7(a) or (b). In
case any such proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party and shall pay as incurred the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel at its own
expense. Notwithstanding the foregoing, the indemnifying party shall pay
promptly as incurred the reasonable fees and expenses of the counsel retained by
the indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it or other indemnified parties which are different
21
<PAGE>
from or additional to those available to the indemnifying party. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm at any time for all such
indemnified parties. Such firm shall be designated in writing by the
Underwriters and shall be reasonably satisfactory to the Offerors in the case of
parties indemnified pursuant to Section 7(a) and shall be designated in writing
by the Offerors and shall be reasonably satisfactory to the Underwriters in the
case of parties indemnified pursuant to Section 7(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or (b) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Offerors on the one hand and
the Underwriters on the other from the offering of the Capital Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Offerors on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Offerors bears to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Offerors on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Offerors and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 7(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7(e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereto) referred
to above in this Section 7(e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(e), no Underwriter shall be required to contribute
any amount in excess of the underwriting discounts and commissions applicable to
the Capital Securities purchased by such Underwriter; and no person guilty of
fraudulent
22
<PAGE>
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 7(e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Offerors under this Section 7 shall be in
addition to any liability which the Offerors may otherwise have, and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the Underwriters may otherwise have.
8. Notices. All communications hereunder shall be in writing and, except
-------
as otherwise provided herein, will be mailed, delivered or telegraphed and
confirmed as follows: if to the Underwriters, to them c/o Dain Rauscher
Incorporated, 60 South Sixth Street, Minneapolis, Minnesota 55402, Attention: J.
David Welch, Managing Director, with a copy to Todd H. Baker, Esq., Gibson, Dunn
& Crutcher LLP, One Montgomery Street, Telesis Tower, 31st Floor, San Francisco,
California 94104; if to the Company, to Bay View Capital Corporation, 2121 South
El Camino Real, San Mateo, California 94403, Attention: Edward H. Sondker,
President and Chief Executive Officer, with a copy to Robert L. Freedman, P.C.,
Silver, Freedman & Taff, L.L.P., 1100 New York Avenue, NW, 7th Floor, East
Tower, Washington, D.C. 20005-3934, and if to the Trust, to it c/o Bay View
Capital Corporation 2121 South El Camino Real, San Mateo, California 94403,
Attention: Robert Flax, with a copy to Wilmington Trust Company, 1100 North
Market Street, Wilmington, Delaware 19890 Attention: Corporate Trust
Administration. All notices given by telegram shall be promptly confirmed by
letter. Any notice to the Trust shall also be copied to the Company at the
address previously stated, Attention: Robert J. Flax. Any party may change its
address for notice purposes by written notice to the other parties.
9. Termination. This Agreement may be terminated by the Underwriters by
-----------
notice to the Offerors as follows:
(a) at any time prior to the earlier of (i) the time the Capital
Securities are released by the Underwriters for sale or (ii) 10:00 A.M., Pacific
time, on the first business day following the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in or
affecting the condition, financial or otherwise, of the Trust, or of the Company
and the Subsidiaries taken as a whole or the business affairs, management,
financial position, shareholders' equity or results of operations of the Trust,
or of the Company and the Subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency after the date hereof or
other national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of the United
States would, in the Underwriters' judgment, make the offering or delivery of
the Capital Securities impracticable or
23
<PAGE>
inadvisable, (iii) suspension of trading in securities on the New York Stock
Exchange or the American Stock Exchange or limitation on prices (other than
limitations on hours or numbers of days of trading) for securities on either
such Exchange, or a halt or suspension of trading in securities generally which
are quoted on Nasdaq or (iv) declaration of a banking moratorium by either
federal or state authorities or New York; or
(c) as provided in Section 6 of this Agreement.
10. Written Information. For all purposes under this Agreement
-------------------
(including, without limitation, Section 1, Section 3 and Section 7 hereof), the
Offerors understand and agree with each of the Underwriters that the following
constitutes the only written information furnished to the Offerors by the
Underwriters specifically for use in preparation of the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto: (i) the per share "Public Offering Price" and per share "Underwriting
Fees to be Paid by the Company" set forth on the cover page of the Prospectus,
and (ii) the information set forth under the caption "Underwriting" in the
Preliminary Prospectus and the Prospectus.
11. Successors. This Agreement has been and is made solely for the
----------
benefit of and shall be binding upon the Underwriters, the Trust and the Company
and their respective successors, executors, administrators, heirs and assigns,
and the trustees and controlling persons and the officers and directors of any
such controlling person referred to herein, and no other person will have any
right or obligation hereunder. The term "successors" shall not include any
purchaser of the Capital Securities merely because of such purchase.
12. Miscellaneous. The reimbursement, indemnification and contribution
-------------
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Offerors or controlling persons thereof and (c) delivery of and payment for
the Capital Securities under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction
or any provision hereof in any other jurisdiction.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware.
If the foregoing letter is in accordance with the Underwriters'
understanding of our agreement, please sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement among the
Offerors and the Underwriters in accordance with its terms.
24
<PAGE>
[The remainder of this page intentionally left blank.]
25
<PAGE>
Very truly yours,
BAY VIEW CAPITAL I, a Delaware business trust
By: /s/ Robert J. Flax
-------------------------------------------
Robert J. Flax, Administrative Trustee
BAY VIEW CAPITAL CORPORATION
By: /s/ David A. Heaberlin
-------------------------------------------
David A. Heaberlin, Chief Financial Officer
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
DAIN RAUSCHER WESSELS, A DIVISION OF
DAIN RAUSCHER INCORPORATED
EVEREN SECURITIES, INC.
PIPER JAFFRAY INC.
SUTRO & CO. INCORPORATED
By: Dain Rauscher Incorporated
By: /s/ Matthew L. Johnson
-------------------------------------------
Matthew L. Johnson, Vice President
<PAGE>
SCHEDULE A
SCHEDULE OF UNDERWRITERS
<TABLE>
<CAPTION>
Capital Number of
Securities Capital Securities
Underwriter to be purchased
- ------------------------------------------ ------------------
<S> <C>
Dain Rauscher Wessels, a division of
Dain Rauscher Incorporated............... 1,280,000
EVEREN Securities, Inc. ................. 640,000
Piper Jaffray Inc. ...................... 640,000
Sutro & Co. Incorporated ................ 640,000
---------
Total 3,200,000
---------
</TABLE>
A-1
<PAGE>
EXHIBIT 4.1
BAY VIEW CAPITAL I
______________
AMENDED AND RESTATED DECLARATION
OF TRUST
______________
DATED AS OF DECEMBER 21, 1998
<PAGE>
<TABLE>
<S> <C>
ARTICLE I INTERPRETATION AND DEFINITION................................................. 1
Section 1.1 Definitions............................................................. 1
ARTICLE II TRUST INDENTURE ACT.......................................................... 8
Section 2.1 Trust Indenture Act; Application........................................ 8
Section 2.2 List of Holders of Securities........................................... 9
Section 2.3 Reports by the Property Trustee......................................... 9
Section 2.4 Periodic Reports to Property Trustee.................................... 9
Section 2.5 Evidence of Compliance with Conditions Precedent........................ 10
Section 2.6 Events of Default; Waiver............................................... 10
Section 2.7 Event of Default; Notice................................................ 12
ARTICLE III ORGANIZATION ............................................................... 12
Section 3.1 Name.................................................................... 12
Section 3.2 Office.................................................................. 12
Section 3.3 Purpose................................................................. 12
Section 3.4 Authority............................................................... 13
Section 3.5 Title to Property of the Trust.......................................... 13
Section 3.6 Powers and Duties of the Regular Trustees............................... 13
Section 3.7 Prohibition of Actions by the Trust and the Trustees.................... 16
Section 3.8 Legal Title to the Debentures........................................... 16
Section 3.9 Certain Duties and Responsibilities of the Property Trustee............. 19
Section 3.10 Certain Rights of Property Trustee..................................... 21
Section 3.11 Delaware Trustee....................................................... 23
Section 3.12 Execution of Documents................................................. 23
Section 3.13 Not Responsible for Recitals or Issuance of Securities................. 23
Section 3.14 Duration of Trust...................................................... 23
Section 3.15 Mergers................................................................ 23
ARTICLE IV SPONSOR...................................................................... 25
Section 4.1 Sponsor's Purchase of Common Securities................................. 25
Section 4.2 Responsibilities of the Sponsor......................................... 25
ARTICLE V TRUSTEES...................................................................... 26
Section 5.1 Number of Trustees...................................................... 26
Section 5.2 Delaware Trustee........................................................ 26
Section 5.3 Property Trustee; Eligibility........................................... 27
Section 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee
Generally............................................................... 27
Section 5.5 Regular Trustees........................................................ 27
Section 5.6 Delaware Trustee........................................................ 28
Section 5.7 Appointment, Removal and Resignation of Trustees........................ 28
Section 5.8 Vacancies among Trustees................................................ 29
Section 5.9 Effect of Vacancies..................................................... 29
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Section 5.10 Meetings............................................................... 30
Section 5.11 Delegation of Power.................................................... 30
Section 5.12 Merger, Conversion, Consolidation or Succession to Business............ 30
ARTICLE VI DISTRIBUTIONS................................................................ 31
Section 6.1 Distributions........................................................... 31
ARTICLE VII ISSUANCE OF SECURITIES...................................................... 31
Section 7.1 General Provisions Regarding Securities................................. 31
Section 7.2 Execution and Authentication............................................ 31
Section 7.3 Form and Dating......................................................... 32
Section 7.4 Paying Agent............................................................ 32
ARTICLE VIII TERMINATION OF TRUST....................................................... 33
Section 8.1 Termination of Trust.................................................... 33
ARTICLE IX TRANSFER OF INTERESTS........................................................ 34
Section 9.1 Transfer of Securities.................................................. 34
Section 9.2 Transfer of Certificates................................................ 34
Section 9.3 Deemed Security Holders................................................. 35
Section 9.4 Book Entry Interests.................................................... 35
Section 9.5 Notices to Clearing Agency.............................................. 36
Section 9.6 Appointment of Successor Clearing Agency................................ 36
Section 9.7 Definitive Capital Security Certificates................................ 36
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates....................... 37
ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS.......... 38
Section 10.1 Liability.............................................................. 38
Section 10.2 Exculpation............................................................ 38
Section 10.3 Fiduciary Duty......................................................... 39
Section 10.4 Indemnification........................................................ 39
Section 10.5 Outside Business....................................................... 42
ARTICLE XI ACCOUNTING................................................................... 43
Section 11.1 Fiscal Year............................................................ 43
Section 11.2 Certain Accounting Matters............................................. 43
Section 11.3 Banking................................................................ 43
Section 11.4 Withholding............................................................ 44
ARTICLE XII AMENDMENTS AND MEETINGS..................................................... 44
Section 12.1 Amendments............................................................. 44
Section 12.2 Meetings of the Holders of Securities; Action by Written Consent...... 46
ARTICLE XIII REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE................... 47
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
Section 13.1 Representations and Warranties of Property Trustee..................... 47
Section 13.2 Representations and Warranties of Delaware Trustee..................... 48
ARTICLE XIV MISCELLANEOUS............................................................... 48
Section 14.1 Notices................................................................ 48
Section 14.2 Governing Law.......................................................... 49
Section 14.3 Intention of the Parties............................................... 49
Section 14.4 Headings............................................................... 50
Section 14.5 Successors and Assigns................................................. 50
Section 14.6 Partial Enforceability................................................. 50
Section 14.7 Counterparts........................................................... 50
ANNEX I: TERMS OF 9.76% CAPITAL SECURITIES COMMON SECURITIES.......................... 1
1. Designation and Number........................................................... 1
2. Distributions.................................................................... 1
3. Liquidation Distribution Upon Dissolution......................................... 3
4. Redemption and Distribution....................................................... 3
5. Voting Rights - Capital Securities................................................ 7
6. Voting Rights - Common Securities................................................. 8
7. Amendments to Declaration and Indenture........................................... 10
8. Pro Rata.......................................................................... 10
9. Ranking........................................................................... 11
10. Listing.......................................................................... 11
11. Acceptance of Securities Guarantee and Indenture................................. 11
12. No Preemptive Rights............................................................. 11
13. Miscellaneous.................................................................... 11
</TABLE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
SECTION OF TRUST INDENTURE ACT OF SECTION OF DECLARATION
1939, AS AMENDED
<S> <C>
310(a) 5.3(a)
310(b) 5.3(c)
310(c) Inapplicable
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4; 3.6(j)
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(f) Inapplicable
315(a) 3.9(b)
315(c) 3.9(a)
315(d) 3.9(a)
316(a) 2.6
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
316(c) 3.6(e)
317(b) 3.8(h)
317(b) 3.8(h)
</TABLE>
- * This Cross-Reference table does not constitute part of this Declaration
and shall not affect the interpretation of any of its terms or provisions.
iv
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of December 21, 1998, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the Trust (as defined herein) to be issued pursuant to
this Declaration;
WHEREAS, certain trustees and the Sponsor established Bay View Capital I
(the "Trust"), a trust under the Business Trust Act (as defined herein) pursuant
to a Trust Agreement, dated as of September 16, 1998 (the "Original
Declaration") and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on September 28, 1998, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures (as
defined herein) of the Sponsor;
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITION
SECTION 1.1 DEFINITIONS.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1, and capitalized terms used in this Declaration and defined in the preamble
above have the respective meanings assigned to them in such preamble;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time and
include all Annexes and Exhibits hereto, which Annexes and Exhibits are
expressly incorporated by reference in and made a part of this Declaration;
1
<PAGE>
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to
this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Additional Securities" means the option to purchase an additional 480,000
Capital Securities which the Trust has granted pursuant to the Underwriting
Agreement.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Base Indenture" means the Indenture dated as of December 21, 1998, between
the Company and the Debt Trustee.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday, Sunday or any other day
on which banking institutions in New York, New York are permitted or required by
any applicable law to close or a day on which the corporate trust office of the
Property Trustee or the Delaware Trustee is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Capital Securities Guarantee" means the Capital Securities Guarantee
Agreement dated as of December 21, 1998, between the Sponsor and Wilmington
Trust Company, as guarantee trustee.
"Capital Security" has the meaning specified in Section 7.1.
"Capital Security Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
2
<PAGE>
"Capital Security Certificate" means a certificate representing a Capital
Security substantially in the form of Exhibit A-1.
"Capital Treatment Event" has the meaning set forth in Section 4 of Annex I
hereto.
"Certificate" means a Common Security Certificate or a Capital Security
Certificate.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act that is acting as depositary for the
Capital Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Capital Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means December 21, 1998.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission or any successor
thereto.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the Common Securities Guarantee
Agreement dated as of December 21, 1998 of the Sponsor in respect of the Common
Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-2.
"Company" means Bay View Capital Corporation until a successor Person shall
have become the "Company" (as defined in the Indenture) pursuant to the
applicable provisions of the Indenture, and thereafter the "Company" shall mean
such successor Person, and any other obligor upon the Indenture.
"Company Indemnified Person" means: (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officer, director, shareholder,
member, partner, employee, representative or agent of any Regular Trustee; or
(d) any officer, employee or agent of the Trust or its Affiliates; provided that
the term "Company Indemnified Person" shall not include any Fiduciary
Indemnified Person.
"Corporate Trust Office" means the principal corporate trust office of the
Property Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution of this
Declaration is located at 1100 North Market Street, Wilmington, Delaware 19890-
0001, Attention: Corporate Trust Administration.
3
<PAGE>
"Covered Person" means: (a) any officer, director, trustee, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debt Trustee" means Wilmington Trust Company, as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Debentures" means the 9.76% Junior Subordinated Deferrable Interest
Debentures due December 31, 2028 to be issued by the Company pursuant to the
Indenture; a form of the certificate evidencing the Debentures appears as
Exhibit A to the Supplemental Indenture.
"Declaration" means this Amended and Restated Declaration of Trust, as the
same may be further amended or supplemented from time to time in accordance with
its terms.
"Declaration Event of Default" has the same meaning as the term "Event of
Default."
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Capital Security Certificates" has the meaning set forth in
Section 9.4.
"Depositary" has the same meaning as Clearing Agency.
"Direct Action" has the meaning specified in Section 3.8(e).
"Distribution" has the meaning set forth in Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default," as used in this Declaration (including Annex I and the
Exhibits hereto) and the certificates evidencing the Securities, means (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):
(i) the occurrence of a Indenture Event of Default; or
(ii) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(iii) default by the Property Trustee in the payment of any
redemption price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Trustees in this Declaration (other than
a default or breach in the performance of a covenant or warranty which is
addressed in clause (ii) or (iii) above, and the continuation of any such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Trustee or Trustees by the
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holders of at least 25% in aggregate liquidation amount of the outstanding
Capital Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" under the Declaration; or
(v) the occurrence of an event of bankruptcy or insolvency (as set
forth in Section 608(4)(c) of the Base Indenture) with respect to the
Property Trustee and the failure by the Company to appoint a successor
Property Trustee within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934 as amended from
time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a Security
is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Base Indenture as supplemented by the Supplemental
Indenture, and as the same may be further amended or supplemented from time to
time in accordance with its terms.
"Indenture Event of Default" means an "Event of Default" as defined in the
Supplemental Indenture.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Section 4 of Annex
I hereto.
"Legal Action" has the meaning set forth in Section 3.6(g).
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in liquidation amount" of the Securities means, except as
provided in the terms of the Capital Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Capital Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that
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would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person, provided that, with respect to
any Officer's Certificate to be delivered by the Regular Trustees, such
certificate shall be signed by two Regular Trustees or, if at the time there is
only one Regular Trustee, such Regular Trustee. Any Officer's Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each officer signing the certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Option Closing Date" means the date of closing of any sale of Additional
Securities (as defined in the Underwriting Agreement).
"Paying Agent" has the meaning specified in Sections 3.8(h) and 7.4.
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.4 hereof.
"Regular Trustee" has the meaning set forth in Section 5.1(b).
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"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
officer within the Corporate Trust Office of the Property Trustee with direct
responsibility for the administration of the Trust, including any vice
president, any assistant vice president, any assistant secretary, the treasurer,
any assistant treasurer or other officer of the Corporate Trust Office of the
Property Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
Capital Securities Guarantee.
"Special Event" has the meaning set forth in Section 4 of Annex I hereto.
"Sponsor" means the Company or any successor entity in its capacity as
sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section 5.7(b).
"Successor Entity" has the meaning set forth in Section 3.15(b).
"Successor Property Trustee" has the meaning set forth in Section 5.7(b).
"Successor Securities" has the meaning set forth in Section 3.15(b).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Supplemental Indenture" means the First Supplemental Indenture dated as of
December 21, 1998 between the Company and the Debt Trustee pursuant to which the
Debentures are to be issued.
"Tax Event" has the meaning set forth in Section 4 of Annex I hereto.
"10% in liquidation amount of the Securities" means, except as provided in
the terms of the Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holders of outstanding Capital Securities
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or Holders of outstanding Common Securities voting separately as a class, who
are the record owners of 10% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust" means Bay View Capital I, a Delaware statutory business trust,
until a successor shall have become such pursuant to the applicable provisions
of this Declaration, and thereafter "Trust" shall mean such successor Trust.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"25% in liquidation amount of the Securities" means, except as provided in
the terms of the Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holders of outstanding Capital Securities or Holders of outstanding
Common Securities voting separately as a class, who are the record owners of 25%
or more of the aggregate liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"Underwriting Agreement" means the Underwriting Agreement dated December
15, 1998, among the Company, the Trust and the underwriters named therein for
the offering and sale of Capital Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
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(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 LIST OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee (i) within 14 days after each record date for
payment of Distributions, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders of the Securities
("List of Holders") as of such record date, provided that neither the Sponsor
nor the Regular Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Property Trustee by the Sponsor and the
Regular Trustees on behalf of the Trust, and (ii) at any other time, within 30
days of receipt by the Trust of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the Property
Trustee; provided, however, that so long as the Property Trustee or an Affiliate
of the Property Trustee is the Registrar no such list shall be required to be
furnished. The Property Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to
it or which it receives in the capacity as Paying Agent (if acting in such
capacity) provided that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under Section
311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Capital Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO PROPERTY TRUSTEE.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee and the Holders such documents, reports and
information as may be required by
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Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Property Trustee
is for informational purposes only and the Property Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Sponsor's
compliance with any of its covenants hereunder (as to which the Property Trustee
is entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(l) may
be given in the form of an Officers' Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of Capital Securities
may, by vote, on behalf of the Holders of all of the Capital Securities, waive
any past Event of Default in respect of the Capital Securities and its
consequences, provided that, if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default under
this Declaration shall also not be waivable; or
(ii) requires the consent or vote of (x) holders of Debentures
representing a specified percentage greater than a majority in principal
amount of the Debentures (a "Super Majority") or (y) each holder of
Debentures affected thereby to be waived under the Indenture, then the
Event of Default under this Declaration may only be waived by the vote of,
in the case of (x) above, Holders of Capital Securities representing at
least such specified percentage of the aggregate liquidation amount of the
outstanding Capital Securities or, in the case of (y) above, each Holder of
outstanding Capital Securities affected thereby.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(b) of the Trust Indenture Act and such Section 316(a)(1)(b) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Capital Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Capital
Securities or impair any right consequent there on. Any waiver by the Holders
of the Capital Securities of an Event of Default with respect to the Capital
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of
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this Declaration without any further act, vote, or consent of the Holders of the
Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Indenture
Event of Default:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event of Default
under this Declaration as provided below in this Section 2.6(b), the Event
of Default under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of (x) a Super Majority or (y)
each holder of Debentures affected thereby to be waived, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under this Declaration as provided below in this Section 2.6(b),
the Event of Default under this Declaration may only be waived by the vote
of, in the case of clause (x) above, Holders of Common Securities
representing at least such specified percentage of the aggregate
liquidation amount of the outstanding Common Securities or, in the case of
clause (y) above, each holder of outstanding Common Securities affected
thereby;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Capital Securities have been cured, waived or otherwise eliminated, and until
such Events of Default with respect to the Capital Securities have been so
cured, waived or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of the Capital Securities and only the
Holders of the Capital Securities will have the right to direct the Property
Trustee in accordance with the terms of the Securities. The foregoing
provisions of this Section 2.6(b) shall be in lieu of Section 316(a)(1)(a) and
316(a)(l)(b) of the Trust Indenture Act and such Section 316(a)(1)(a) and
316(a)(l)(b) of the Trust Indenture Act are hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
Subject to the foregoing provisions of this Section 2.6(b), upon such waiver,
any such default shall cease to exist and any Event of Default with respect to
the Common Securities arising therefrom shall be deemed to have been cured for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property Trustee
at the direction of the Holders of the Capital Securities constitutes a waiver
of the corresponding Event of Default under this Declaration. The foregoing
provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(b) of
the Trust Indenture Act and such Section 316(a)(1)(b) of the Trust Indenture Act
is hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act.
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SECTION 2.7 EVENT OF DEFAULT; NOTICE.
(a) The Property Trustee shall, within ten (10) Business Days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Securities, the Regular Trustees and the Sponsor,
notices of such Event of Default with respect to the Securities actually known
to a Responsible Officer of the Property Trustee, unless such Event of Default
has been cured or waived before the giving of such notice; provided that, except
for a default in the payment of principal of or interest on any of the
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as a Responsible Officer of the Property Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default with respect to the Debentures except:
(i) a default with respect to the Debentures under Section 2.9(a)
or (b) of the Supplemental Indenture; or
(ii) any default with respect to the Debentures as to which the
Property Trustee shall have received written notice or of which a
Responsible Officer of the Property Trustee charged with the administration
of this Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 NAME.
The Trust is named "Bay View Capital I" as such name may be modified from
time to time by the Regular Trustees following written notice to the Holders of
Securities and the other Trustees. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2 OFFICE.
The address of the principal office of the Trust is c/o Bay View Capital
Corporation, 1840 Gateway Drive, San Mateo, California 94404. On ten Business
Days' written notice to the Holders of Securities and the other Trustees, the
Regular Trustees may designate another principal office.
SECTION 3.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Debentures, and
(b) except as otherwise limited herein, to engage in only those other activities
necessary, or incidental thereto. The Trust shall
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not borrow money, issue securities other than the Securities, issue debt, make
investments other than in the Debentures or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified for
United States federal income tax purposes as a grantor trust.
SECTION 3.4 AUTHORITY.
Subject to the limitations provided in this Declaration and to the specific
duties of the Property Trustee, the Regular Trustees shall have exclusive and
complete authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee on
behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Debentures and the
Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Capital Securities and the Common Securities
in accordance with this Declaration; provided, however, that the Trust may issue
no more than one series of Capital Securities and no more than one series of
Common Securities, and, provided further, that there shall be no interests in
the Trust other than the Securities, and the issuance of Securities shall be
limited to a simultaneous issuance of both Capital Securities and Common
Securities on the Closing Date and the Option Closing Date, if any;
(b) in connection with the issue and sale of the Capital Securities,
at the direction of the Sponsor, to:
(i) file with the Commission the registration statement on
Form S-3 prepared by the Sponsor, including any amendments thereto,
pertaining to, among other securities, the Capital Securities;
(ii) file any documents prepared by the Sponsor, or take any
acts as determined by the Sponsor to be necessary in order to qualify
or register all or
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part of the Capital Securities in any State in which the Sponsor has
determined to qualify or register such Capital Securities for sale;
(iii) file an application, prepared by the Sponsor, to the
Nasdaq National Market or any other national stock exchange for
listing upon notice of issuance of any Capital Securities;
(iv) file with the Commission a registration statement on Form
8-A, including any amendments thereto, prepared by the Sponsor,
relating to the registration of the Capital Securities and, if deemed
necessary or appropriate by the Regular Trustees, the guarantee of the
Sponsor in respect of the Capital Securities under Section 12(b) or
12(g) of the Exchange Act; and
(v) enter into the Underwriting Agreement providing for the
sale of the Capital Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Capital Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Capital Securities and the Holders of Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Special Event; provided that the Regular Trustees shall
not be required to give such notice unless any Regular Trustee shall have
obtained actual knowledge of the occurrence of a Special Event; and provided,
further, that the Regular Trustees shall consult with the Sponsor and the
Property Trustee before taking or refraining from taking any Ministerial Action
in relation to a Special Event;
(e) subject to Section 2(c) of Annex I hereto, to establish a record
date with respect to all actions to be taken hereunder that require a record
date be established, including and with respect to, for the purposes of Section
316 (c) of the Trust Indenture Act, Distributions, voting rights, redemptions
and exchanges, and to issue relevant notices to the Holders of Capital
Securities and Holders of Common Securities as to such actions and applicable
record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
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(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of
any notice received from the Sponsor of its election to defer payments of
interest on the Debentures by extending the interest payment period under the
Indenture, and the Regular Trustee shall give such notice;
(n) to execute all documents, certificates, agreements or instruments,
perform all duties and powers, and do all things for and on behalf of the Trust
in all matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Capital
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(p) to conduct the affairs of and to operate the Trust and to take any
action, not inconsistent with this Declaration or with applicable law, that the
Regular Trustees determine in their discretion to be necessary or desirable in
carrying out the activities of the Trust as set out in this Section 3.6,
including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Sponsor to ensure that the Debentures
will be treated as indebtedness of the Sponsor for United States
federal income tax purposes,
provided that such action does not adversely affect the interests of Holders;
and
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust.
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The Regular Trustees must exercise the powers set forth in this Section 3.6
in a manner that is consistent with the purposes and functions of the Trust set
out in Section 3.3, and the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Sponsor.
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees (including the Property Trustee)
shall not cause the Trust to, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall not cause the Trust to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of Securities
pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
to or beneficial interest in the Trust other than the Securities; or
(vii) other than as provided in this Declaration, (a) direct the
time, method and place of exercising any trust or power conferred upon the
Debt Trustee with respect to the Debentures, (b) waive any past default
that is waivable under the Indenture, (c) exercise any right to rescind or
annul any declaration that the principal of all the Debentures shall be due
and payable, or (d) consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be required
unless the Trust shall have received an opinion of counsel to the effect
that such modification will not cause more than an insubstantial risk that
for United States federal income tax purposes the Trust will not be
classified as a grantor trust.
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SECTION 3.8 LEGAL TITLE TO THE DEBENTURES.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Property Trustee (in its capacity as such) in trust for the
benefit of the Holders of the Securities. The right, title and interest of the
Property Trustee to the Debentures shall vest automatically in each Person who
may hereafter be appointed as Property Trustee in accordance with Section 5.7.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Debentures to the Regular Trustees or to the Delaware Trustee (if the
Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made in respect of
the Debentures held by the Property Trustee, deposit such funds into the
Property Trustee Account and make payments to the Holders of the Capital
Securities and Holders of the Common Securities from the Property Trustee
Account in accordance with Section 6.1. Funds in the Property Trustee
Account shall be held uninvested until disbursed in accordance with this
Declaration. The Property Trustee Account shall be an account that is
maintained with a banking institution (which may be the Property Trustee)
the rating on whose long-term unsecured indebtedness is at least equal to
the rating assigned to the Capital Securities by a "nationally recognized
statistical rating organization," as that term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Capital Securities and the
Common Securities to the extent the Debentures are redeemed or accelerated
or mature;
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities upon the occurrence
of certain Special Events; and
(iv) take such ministerial action as may be requested by the Regular
Trustees in connection with the winding up of the affairs of or liquidation
of the Trust in accordance with this Declaration and the preparation,
execution and filing of a certificate of cancellation or other appropriate
certificates with the Secretary of State of the State of Delaware and other
appropriate governmental authorities.
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
the Securities.
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(e) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Debentures under the Indenture and,
if an Indenture Event of Default actually known to a Responsible Officer of the
Property Trustee occurs and is continuing, the Property Trustee shall, for the
benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to the terms of such
Securities. The Property Trustee shall take any Legal Action which arises out
of or in connection with an Event of Default of which a Responsible Officer of
the Property Trustee has actual knowledge or the Property Trustee's duties and
obligations under this Declaration or the Trust Indenture Act. Subject to
paragraph (g) below the Holders of a Majority in liquidation amount of the
Capital Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee or to
direct the exercise of any trust or power conferred upon the Property Trustee
under this Declaration, including the right to direct the Property Trustee, as
holder of the Debentures, to (i) exercise the remedies available to it under the
Indenture with respect to the Debentures, (ii) waive any past Indenture Event of
Default and its consequences that is waivable under the Indenture or (iii)
exercise any right to rescind or annul a declaration that the principal of all
Debentures shall be due and payable. Notwithstanding the foregoing, if an
Indenture Event of Default under Section 2.9(d) or 2.9(e) of the Supplemental
Indenture has occurred and is continuing, the holders of 25% of the aggregate
liquidation amount of the Capital Securities then outstanding may direct the
Property Trustee to declare the principal and interest payable on the Debentures
immediately due and payable; and provided, further, that where a consent under
the Indenture would require the consent of (a) a Super-Majority or (b) each
holder of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior consent of, in the case of clause (a) above,
holders of Capital Securities representing at least such specified percentage of
the aggregate liquidation amount of the Capital Securities or, in the case of
clause (b) above, each holder of Capital Securities affected thereby. If the
Property Trustee fails to enforce its rights under the Debentures, a Holder of
Capital Securities, to the fullest extent permitted by law, may institute a
legal proceeding directly against the Company to enforce the Property Trustee's
rights under the Debentures without first instituting any legal proceeding
against the Property Trustee or any other Person; provided further, that, if an
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Company to pay principal of or interest on the Debentures
on the date such principal or interest, as the case may be, is otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of Capital
Securities may directly institute a proceeding for enforcement of payment to
such Holder directly of the principal of or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder (a "Direct Action") on or after the respective due
date specified in the Debentures or the Indenture. Notwithstanding any payments
made to such Holder by the Company, in connection with such Direct Action, the
Company shall remain obligated to pay the principal of or interest on such
Debentures, and the Company shall be subrogated to the rights of such Holder of
Capital Securities to the extent of any payment made by the Company to such
Holder of Capital Securities in such Direct Action. Except as provided in the
preceding sentences of this paragraph, the Holders of Capital Securities shall
have no right or power to exercise directly any other remedy available to the
holders of the Debentures.
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(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7.
(g) Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Property Trustee shall not take any of
the actions described in clause (i), (ii) or (iii) of subsection (e) above
unless the Trustees have obtained, at the expense of the Trust, an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of such action, the Trust will not be classified as
other than a grantor trust for U.S. federal income tax purposes and each holder
will be treated as owning an undivided beneficial interest in the Debentures.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this Section 3.8
in a manner that is consistent with the purposes and functions of the Trust set
out in Section 3.3, and the Property Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out in Section
3.3.
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE.
(a) The Property Trustee, before the occurrence of any Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants or obligations shall be read into this
Declaration against the Property Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
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(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Declaration and
the Property Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations shall be read
into this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Declaration; but in
the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of
this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in liquidation
amount of the Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity
reasonably satisfactory to the Property Trustee against such risk or
liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Property
Trustee Account shall be to deal with such property in a similar manner as
the Property Trustee deals with similar
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property for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Declaration and the
Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree in writing with
the Sponsor, and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Trustee
Account maintained by the Property Trustee pursuant to Section 3.8(c)(i)
and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Regular Trustees or the Sponsor with their respective
duties under this Declaration, nor shall the Property Trustee be liable for
any default or misconduct of the Regular Trustees or the Sponsor.
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;
(ii) a direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its selection
or other experts and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts' area
of expertise shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted
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by it hereunder in good faith and in accordance with such advice or
opinion; such counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees; and the Property Trustee
shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration at the request
or direction of any Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including attorneys' fees
and expenses and the expenses of the Property Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances as may be
requested by the Property Trustee, provided, that nothing contained in this
Section 3.10(a)(vi) shall be taken to (a) require the Holders of Securities
to offer such indemnity in the event such Holders direct the Property
Trustee to take any action it is empowered to take under this Declaration
following an Event of Default or (b) relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note other evidence of
indebtedness or other paper or document, but the Property Trustee in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys and the Property 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;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient
and effective to perform any such action and no third party shall be
required to inquire as to the authority of the Property Trustee to so act
or as to its compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive written instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request written instructions from
the Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities as
would be entitled to direct the Property Trustee under the terms of the
Securities in
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respect of such remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until such instructions
are received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Declaration; and
(xii) the Property Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 3.11 DELAWARE TRUSTEE.
Notwithstanding any other provision of this Declaration other than this
Section 3.11, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Trustees described in this Declaration (except as required under the
Business Trust Act). Except as set forth in this Section 3.11, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act that the Trust have at
least one trustee with a principal place of business in Delaware. The duties of
the Delaware Trustee shall be limited to (a) accepting legal process served on
the Trust in the State of Delaware and (b) the execution of any certificates
required to be filed with the Delaware Secretary of State which the Delaware
Trustee is required to execute under Section 3811 of the Business Trust Act.
SECTION 3.12 EXECUTION OF DOCUMENTS.
Except as otherwise required by the Business Trust Act or applicable law,
any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute or
to cause the Trust to execute pursuant to Section 3.6.
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
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SECTION 3.14 DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions of Article 8
hereof, shall have existence until the date specified in Section 8.1(a)(vi)
hereof.
SECTION 3.15 MERGERS.
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees and without the consent of
the Holders of the Securities, the Delaware Trustee or the Property Trustee,
consolidate, amalgamate, merge with or into, convey, transfer or lease its
properties and assets substantially as an entirety to or be replaced by a trust
organized as such under the laws of any State of the United States; provided
that:
(i) if the Trust is not the survivor, such successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under
the Securities; or
(B) substitutes for the Capital Securities other securities
having substantially the same terms as the Capital Securities (the
"Successor Securities") so long as the Successor Securities rank the
same as the Capital Securities rank with respect to Distributions and
payments upon liquidation, redemption and otherwise;
(ii) if the Trust is not the survivor, the Sponsor expressly
acknowledges or appoints a trustee of the Successor Entity that possesses
the same powers and duties as the Property Trustee as the holder of the
Debentures;
(iii) the Capital Securities or any Successor Securities are listed,
or any Successor Securities will be listed upon notification of issuance,
on any national securities exchange or with another organization on which
the Capital Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Capital Securities (including any Successor Securities)to be
downgraded by any nationally recognized statistical rating organization (as
defined in Section 3.8 above);
(v) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of such Holders' interests
in the new entity, if any);
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(vi) such Successor Entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect
that:
(A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the
Holders of the Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the
Holders' interest in the new entity);
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity, if any, will
be required to register as an Investment Company; and
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will be treated as a
grantor trust for United States federal income tax purposes; and
(viii) if the Trust is not the survivor, the Sponsor guarantees the
obligations of such Successor Entity under the Successor Securities at
least to the extent provided by the Securities Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other Person or
permit any other Person to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date and on any Option Closing Date the Sponsor will
purchase the Common Securities issued by the Trust, in an amount equal to at
least 3% of the capital of the Trust, at the same time as the Capital Securities
are sold.
SECTION 4.2 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Capital Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
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(a) to prepare for filing by, and execute on behalf of, the Trust with
the Commission a registration statement on Form S-3 in relation to the Capital
Securities and the Capital Securities Guarantee, including any amendments
thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Capital Securities and the
Capital Securities Guarantee and to do any and all such acts, other than actions
which must be taken by the Trust, and advise the Trust of actions it must take,
and prepare for filing and execute any documents to be executed and filed by the
Trust, as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by, and execute on behalf of, the Trust an
application to the Nasdaq National Market or any other national stock exchange
for listing upon notice of issuance of any Capital Securities and, if deemed
necessary or advisable by the Sponsor, the Capital Securities Guarantee;
(d) to prepare for filing by, and execute on behalf of, the Trust
documents or instruments to be delivered to DTC relating to the Capital
Securities;
(e) to prepare for filing with the Commission by, and execute on
behalf of, the Trust a registration statement on Form 8-A relating to the
registration of the Capital Securities and, if deemed necessary or advisable by
the Sponsor, the Capital Securities Guarantee under Section 12(b) or 12(g) of
the Exchange Act, including any amendments thereto; and
(f) to negotiate the terms of, and execute on behalf of the Trust, the
Underwriting Agreement providing for the sale of the Capital Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES.
The number of Trustees initially shall be four (4), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that the number of Trustees shall in
no event be less than two; provided further that (1) one Trustee shall satisfy
the requirements of Section 5.2; (2) there shall be at least one Trustee who is
an employee or officer of, or is affiliated with the Sponsor (a "Regular
Trustee"); and (3) one Trustee shall be the Property Trustee for so long as this
Declaration is
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required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 5.2 DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements of
applicable law; provided that, if the Property Trustee has its principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee shall also be the Delaware Trustee and
Section 3.11 shall have no application.
SECTION 5.3 PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation or bank organized and doing business under the
laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation, bank or other Person
permitted by the Commission to act as an Property Trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by federal, state, territorial or
District of Columbia authority. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for the purposes
of this Section 5.3(a)(ii), the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 5.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Capital Securities Guarantee shall be deemed to be specifically
described in this Declaration for purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
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(e) The initial Property Trustee shall be Wilmington Trust Company.
SECTION 5.4 CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE
GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the Property Trustee
also acts as Delaware Trustee) shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more Authorized
Officers.
SECTION 5.5 REGULAR TRUSTEES.
The initial Regular Trustees shall be: Robert J. Flax and David A.
Heaberlin.
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6.
(c) A Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to execute or cause the Trust to execute pursuant to
Section 3.6.
SECTION 5.6 DELAWARE TRUSTEE.
The initial Delaware Trustee shall be Wilmington Trust Company.
SECTION 5.7 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.7(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders of
a Majority in liquidation amount of the Common Securities voting as a class
at a meeting of the Holders of the Common Securities.
(b)(i) the Trustee that acts as Property Trustee shall not be removed in
accordance with Section 5.7(a) until a successor Property Trustee (a "Successor
Property Trustee") has been an
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appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Regular Trustees and the
Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with Section 5.7(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(a) Until a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor
Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or
(b) Until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the Holders of the Securities;
and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Property Trustee or Successor Delaware Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.7.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 5.7
within 60 days after delivery of an instrument of resignation or removal, the
Property Trustee or Delaware Trustee resigning or being removed, as applicable,
may petition any court of competent jurisdiction for appointment of a Successor
Property Trustee or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and prescribe, appoint a
Successor Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the acts
or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
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SECTION 5.8 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.7.
SECTION 5.9 EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.7, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.10 MEETINGS.
If there is more than one Regular Trustee, meetings of the Regular Trustees
shall be held from time to time upon the call of any Regular Trustee. Regular
meetings of the Regular Trustees may be held at a time and place fixed by
resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustee or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.11 DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6; and
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(b) the Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
SECTION 5.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which the Property Trustee or the Delaware Trustee, as the
case may be, may be merged or converted or with which either may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of the Property Trustee or the Delaware Trustee, as
the case may be, shall be the successor of the Property Trustee or the Delaware
Trustee, as the case may be, hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided,
however, such successor shall notify the Sponsor and the Trust promptly of its
succession.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS.
Holders shall receive Distributions in accordance with the applicable terms
of the relevant Holder's Securities. Distributions shall be made on the Capital
Securities and the Common Securities in accordance with the preferences set
forth in their respective terms. If and to the extent that the Sponsor makes a
payment of interest (including Compounded Interest (as defined in the
Indenture)), or principal on the Debentures held by the Property Trustee (the
amount of any such payment being a "Payment Amount"), the Property Trustee shall
and is directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust issue one class of
Capital Securities representing undivided beneficial interests in the assets of
the Trust having such terms as are set forth in Annex I (the "Capital
Securities") and one class of common securities representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (the "Common Securities"). The Trust shall issue no securities
or other interests
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in the assets of the Trust other than the Capital Securities and the Common
Securities. The issuance of the Trust Securities shall not be subject to any
preemptive or other similar rights.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Capital Securities as provided in this
Declaration, the Capital Securities so issued shall be deemed to be validly
issued, fully paid and non-assessable.
(d) Every Person, by virtue of having become a Holder or a Capital
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2 EXECUTION AND AUTHENTICATION.
(a) The Certificates shall be signed on behalf of the Trust by a Regular
Trustee. In case any Regular Trustee of the Trust who shall have signed any of
the Securities shall cease to be such Regular Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be signed on behalf of the Trust
by such persons who, at the actual date of execution of such Security, shall be
the Regular Trustees of the Trust, although at the date of the execution and
delivery of this Declaration any such person was not such a Regular Trustee.
(b) One Regular Trustee shall sign the Capital Securities and the Common
Securities for the Trust by manual or facsimile signature. Unless otherwise
determined by the Trust, such signature shall, in the case of Common Securities,
be a manual signature.
A Capital Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Property Trustee. The signature
shall be conclusive evidence that the Capital Security has been authenticated
under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Capital Securities for original issue.
The Property Trustee may appoint, with the consent of the Regular Trustees,
an authenticating agent acceptable to the Trust to authenticate Capital
Securities. An authenticating agent may authenticate Capital Securities
whenever the Property Trustee may do so. Each reference in this Declaration to
authentication by the Property Trustee includes authentication by such agent.
An authenticating agent has the same rights as the Property Trustee to deal with
the Company or an Affiliate of the Company.
SECTION 7.3 FORM AND DATING.
The Capital Securities and the Property Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 and the Common
Securities shall be substantially in the
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form of Exhibit A-2, each of which is hereby incorporated in and expressly made
a part of this Declaration. Certificates may be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by their execution thereof. The Securities
may have letters, numbers, notations or other marks of identification or
designation and such legends or endorsements required by law, stock exchange or
quotation system rule, agreements to which the Trust is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form
reasonably acceptable to the Trust). The Trust at the direction of the Sponsor
shall furnish any such legend not contained in Exhibit A-1 or A-2 to the
Property Trustee in writing. Each Capital Security Certificate shall be dated
the date of its authentication. The terms and provisions of the Securities set
forth in Annex I and the forms of Securities set forth in Exhibits A-1 and A-2
are part of the terms of this Declaration and to the extent applicable, the
Property Trustee and the Sponsor, by their execution and delivery of this
Declaration, expressly agree to such terms and provisions and to be bound
thereby.
SECTION 7.4 PAYING AGENT.
In the event that the Capital Securities are not in book-entry only form,
the Trust shall maintain in the Borough of Manhattan, City of New York, State of
New York, an office or agency where the Capital Securities may be presented for
payment ("Paying Agent") and a Registrar (as defined below). The Trust shall
maintain a Paying Agent and an office or agency where Securities may be
presented for registration of transfer or exchange ("Registrar"). The Registrar
shall keep a register of the Capital Securities and of the transfer and exchange
thereof. The Trust may appoint the Paying Agent and the Registrar and may
appoint one or more additional paying agents, one or more additional registrars
in such other locations as it shall determine. The term "Paying Agent" includes
any additional paying agent and the term "Registrar" includes any additional
registrar. The Trust may change any Paying Agent or Registrar without prior
notice to any Holder. The Trust shall notify the Property Trustee in writing of
the name and address of any Agent not a party to this Declaration. If the Trust
fails to appoint or maintain another entity as Paying Agent or Registrar, the
Property Trustee shall act as such. The Trust or any of its Affiliates may act
as Paying Agent or Registrar. The Trust shall act as Paying Agent or Registrar
for the Common Securities. The Paying Agent and Registrar shall be entitled to
the rights and protections extended to the Property Trustee when acting in such
capacity.
The Trust initially appoints the Property Trustee, acting through its
Corporate Trust Office in The City of New York, as Registrar and Paying Agent
for the Capital Securities.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 TERMINATION OF TRUST.
(a) The Trust shall dissolve:
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(i) upon an Indenture Event of Default pursuant to Section 2.9 (d)
or (e) of the Supplemental Indenture, subject to such Indenture Event of
Default remaining in effect for 90 consecutive days;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or upon the revocation of the
Sponsor's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust by a court of competent jurisdiction;
(iv) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been
paid to the Holders in accordance with the terms of the Securities;
(v) upon the occurrence and continuation of a Special Event
pursuant to which the Trust shall have been dissolved in accordance with
the terms of the Securities and, after satisfaction of liabilities of
creditors (whether by payment or reasonable provision for payment), when
all of the Debentures held by the Property Trustee shall have been
distributed to the Holders of Securities in exchange for all of the
Securities;
(vi) the expiration of the term of the Trust on December 31, 2033;
or
(vii) upon delivery by the Regular Trustees of written direction to
the Property Trustee to dissolve the Trust.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), after satisfaction of liabilities of creditors (whether by
payment or reasonable provision for payment), the Trustees shall file a
certificate of cancellation with the Secretary of State of the State of Delaware
and the Trust shall terminate.
(c) The provisions of Article 10 shall survive the termination of the
Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 TRANSFER OF SECURITIES.
(a) Where Capital Securities are presented to a Registrar with a request
to register the transfer thereof or to exchange them for an equal number of
Capital Securities represented by different certificates, the Registrar shall
register the transfer or make the exchange. To permit registrations of transfers
and exchanges, the Trust shall issue and the Property Trustee shall authenticate
certificates for the Capital Securities at the Registrar's request. Securities
may only be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this
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Declaration and in the terms of the Securities. Any transfer or purported
transfer of any Security not made in accordance with this Declaration shall be
null and void.
(b) Subject to this Article IX, Capital Securities shall be freely
transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the Sponsor;
provided that, any such transfer is subject to the condition precedent that the
transferor obtain the written opinion of nationally recognized independent
counsel experienced in such matters that such transfer would not cause more than
an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company required to register
under the Investment Company Act or the transferee would become an
Investment Company required to register under the Investment Company Act.
SECTION 9.2 TRANSFER OF CERTIFICATES.
The Regular Trustees shall provide for the registration of Certificates and
of transfers of Certificates, which will be effected without charge but only
upon payment (with such indemnity as the Regular Trustees may require) in
respect of any tax or other government charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be issued in the
name of the designated transferee or transferees. Every Certificate surrendered
for registration of transfer or exchange, or redemption shall be accompanied by
a written instrument of transfer in form satisfactory to the Registrar and
Regular Trustees duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Certificate surrendered for registration of
transfer or exchange, or for redemption shall be canceled by the Regular
Trustees (in the case of Common Securities) or by the Property Trustee (in the
case of Capital Securities). A transferee of a Certificate shall be entitled to
the rights and subject to the obligations of a Holder hereunder upon the receipt
by such transferee of a Certificate. By acceptance of a Certificate, each
transferee shall be deemed to have agreed to be bound by this Declaration.
The Regular Trustees will not be required to register the transfer of or
exchange any Securities during the period beginning at the opening of business
15 days before the selection of any Securities to be redeemed (unless all of the
outstanding Securities are called for redemption) and ending at the close of
business on the day of that selection or register the transfer of or exchange
any Securities, or portions thereof, called for redemption, except the
unredeemed portion of any Security being redeemed in part. In the event that
any Securities are not held in book-entry form, Holders will be required to
surrender certificates evidencing such Securities to a Paying Agent in order to
receive payments due upon redemption.
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SECTION 9.3 DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, to the extent permitted by applicable law, shall not be bound to
recognize any equitable or other claim to or interest in such Certificate or in
the Securities represented by such Certificate on the part of any Person,
whether or not the Trust shall have actual or other notice thereof.
SECTION 9.4 BOOK ENTRY INTERESTS.
Unless otherwise specified in the terms of the Capital Securities, the
Capital Securities Certificates, on original issuance, will be issued in the
form of one or more fully registered, global Capital Security Certificates (each
a "Global Certificate"), to be delivered to DTC, the initial Clearing Agency,
by, or on behalf of, the Trust. Such Global Certificates shall initially be
registered on the books and records of the Trust in the name of Cede & Co., the
nominee of DTC, and no Capital Security Beneficial Owner will receive a
definitive Capital Security Certificate representing such Capital Security
Beneficial Owner's interests in such Global Certificates, except as provided in
Section 9.7. Unless and until definitive, fully registered Capital Security
Certificates (the "Definitive Capital Security Certificates") have been issued
to the Capital Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of the Capital Securities and the sole holder
of the Global Certificates and shall have no obligation to the Capital Security
Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this Section
9.4 shall control; and
(d) the rights of the Capital Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Capital Security Beneficial
Owners and the Clearing Agency and/or the Clearing Agency Participants,
including receiving and transmitting payments of Distributions on the Global
Certificates to such Clearing Agency Participants. DTC will make book entry
transfers among the Clearing Agency Participants; provided, that solely for the
purposes of determining whether the Holders of the requisite amount of Capital
Securities have voted on any matter provided for in this Declaration, so long as
Definitive Capital Security Certificates have not been issued, the Trustees may
conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Clearing Agency
setting forth the Capital Security Beneficial Owners' votes or assigning the
right to vote on any matter to any other Persons either in whole or in part.
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SECTION 9.5 NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Capital Security Holders is
required under this Declaration, unless and until Definitive Capital Security
Certificates shall have been issued to the Capital Security Beneficial Owners
pursuant to Section 9.7, the Regular Trustees shall give all such notices and
communications specified herein to be given to the Capital Security Holders to
the Clearing Agency, and shall have no notice obligations to the Capital
Security Beneficial Owners.
SECTION 9.6 APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Capital Securities, the Regular Trustees may, in
their sole discretion, appoint a successor Clearing Agency with respect to such
Capital Securities.
SECTION 9.7 DEFINITIVE CAPITAL SECURITY CERTIFICATES.
(a) In the event that:
(i) the Clearing Agency notifies the Trust that it is unwilling or
unable to continue as Clearing Agency for the Global Certificates or if at
any time the Clearing Agency ceases to be a clearing agency registered as
such under the Exchange Act and no successor Clearing Agency shall have
been appointed within 90 days of such notification or of the Trust becoming
aware of the Clearing Agency's ceasing to be so registered, as the case may
be; or
(ii) the Regular Trustees elect, in their sole discretion, to
terminate the book entry system through the Clearing Agency with respect to
the Capital Securities, and any Regular Trustee executes and delivers to
the Property Trustee an order to the effect that the Global Certificates
will be exchangeable for Definitive Capital Securities Certificates; or
(iii) an Event of Default has occurred and is continuing, then:
(b) Definitive Capital Security Certificates shall be prepared by the
Regular Trustees on behalf of the Trust with respect to such Capital Securities;
and
(c) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Capital Security Certificates to be delivered to Capital Security
Beneficial Owners in accordance with the instructions of the Clearing Agency.
Neither the Trustees nor the Trust shall be liable for any delay in delivery of
such instructions and each of them may conclusively rely on and shall be
protected in relying on, said instructions of the Clearing Agency. The
Definitive Capital Security Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by the execution thereof by any Regular
Trustee, and may have such letters, numbers or other marks of
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identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which Capital Securities may be listed, or to conform
to usage.
SECTION 9.8 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or, in the case of Capital Securities, the Property Trustee, and if
the Regular Trustees and, in the case of Capital Securities, the Property
Trustee shall receive evidence to their satisfaction of the destruction, loss or
theft of any Certificate; and
(b) there shall be delivered to the Property Trustee and the Regular
Trustees such security or indemnity as may be required by them to keep each of
them and the Sponsor harmless, then, in the absence of notice that such
Certificate shall have been acquired by a protected purchaser, any Regular
Trustee on behalf of the Trust shall execute and deliver or, in the case of
Capital Securities, any Regular Trustee shall execute and the Property Trustee
shall authenticate and deliver, in exchange for, or in lieu of, any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 9.8, the Property Trustee or the Regular Trustees may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith and any other expenses (including the
fees and expenses of the Property Trustee) connected therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 LIABILITY.
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; or
(ii) be required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
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(b) The Company shall be liable for all of the debts and obligations of
the Trust (other than with respect to the Securities) to the extent not
satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Capital Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct (except as otherwise provided, in the case of the Property Trustee,
in the Trust Indenture Act) with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 10.3 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner
that is or provides terms
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that are, fair and reasonable to the Trust or any Holder of Securities, the
Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry practices, and any
applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified Person at law or in
equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority the
Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 10.4 INDEMNIFICATION.
(a) (i) The Sponsor shall indemnify, to the full extent permitted by law,
any Company Indemnified Person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Trust) by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit
by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he
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acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as
to which such Company Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such Company
Indemnified Person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the Sponsor
only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent legal counsel
in a written opinion, or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a) shall be paid by the Sponsor in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Sponsor as authorized in this Section 10.4(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor if a
determination is reasonably and promptly made (i) by the Regular Trustees
by a majority vote of a quorum of disinterested Regular Trustees, (ii) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in
a written opinion, or (iii) the Common Security Holder of the Trust, that,
based upon the facts known to the Regular Trustees, counsel or the Common
Security Holder at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such Company
Indemnified Person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal proceeding, that
such Company Indemnified
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Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to the
Trust or its Common or Capital Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Sponsor
or Capital Security Holders of the Trust or otherwise, both as to action in
his official capacity and as to action in another capacity while holding
such office. All rights to indemnification under this Section 10.4(a)
shall be deemed to be provided by a contract between the Sponsor and each
Company Indemnified Person who serves in such capacity at any time while
this Section 10.4(a) is in effect. Any repeal or modification of this
Section 10.4(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain insurance on
behalf of any Person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Sponsor would have
the power to indemnify him against such liability under the provisions of
this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 10.4(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Sponsor agrees to indemnify, to the fullest extent permitted by
law, (i) the Property Trustee, (ii) the Delaware Trustee, (iii) the Paying
Agent, (iv) any Affiliate of the Property Trustee and the Delaware Trustee and
(v) any officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee, the
Paying Agent and the Delaware Trustee (each of the Persons in (i) through (v)
being referred to as a "Fiduciary Indemnified Person") for, and to hold each
Fiduciary Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration or the trust or trusts
hereunder, including the reasonable costs, fees and expenses (including
reasonable legal
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fees and expenses of the Property Trustee and the Delaware Trustee and
reasonable expenses related to the enforcement by the Property Trustee of the
rights of the holders of the Capital Securities) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The provisions of this
Section 10.4(b) shall survive the satisfaction and discharge of this Declaration
or the resignation or removal of the Delaware Trustee or the Property Trustee,
as the case may be.
SECTION 10.5 OUTSIDE BUSINESS.
Any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the Holders of Securities shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor, the Delaware Trustee, or the
Property Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person
shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
SECTION 11.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books, records and supporting documents,
which shall reflect in detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting in compliance
with generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for the United States federal income
tax purposes. The financial statements of the Trust for each of its Fiscal
Years shall be audited in accordance with generally accepted auditing standards
by a firm of independent certified public accountants selected by the Regular
Trustees.
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(b) The Regular Trustees shall cause to be prepared and delivered to each
of the Holders of Securities and the other Trustees, within 90 days after the
end of each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statement of income or loss for such Fiscal Year.
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders of Securities, any annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the
Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority, an annual United States federal income tax
return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3 BANKING.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly to
the Property Trustee Account and no other funds of the Trust shall be deposited
in the Property Trustee Account. The sole signatories for such accounts shall
be designated by any of the Regular Trustees; provided, however, that the
Property Trustee shall designate the signatories for the Property Trustee
Account.
SECTION 11.4 WITHHOLDING.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of
any claimed over-withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
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ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may only be amended by a written
instrument approved and executed by the Regular Trustees (or, if there are more
than two Regular Trustees a majority of the Regular Trustees) and together with:
(i) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property Trustee;
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee;
and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Sponsor, the Sponsor.
(b) no amendment shall be made, and any such purported amendment shall be
void and ineffective unless the Property Trustee shall have first received:
(i) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and
(ii) an opinion of counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities) and
that such amendment or modification would not (i) cause the Trust to
be classified for purposes of United States federal income taxation as
other than a grantor trust, (ii) reduce or otherwise adversely affect
the powers of the Property Trustee in contravention of the Trust
Indenture Act or (iii) cause the Trust to be deemed an "investment
company" which is required to be registered under the 1940 Act; and
(c) at such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder of Securities may be effected only with such
additional requirements as may be set forth in the terms of such Securities;
(d) Section 10.1(c) and paragraph (c) of this Section 12.1 shall not be
amended without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the Holders of
a Majority in liquidation amount of the Common Securities;
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(f) the rights of the Holders of the Common Securities under Article V to
increase or decrease the number of and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in liquidation amount
of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration and the Securities
may be amended without the consent of the Holders of the Securities, provided,
however, that in the case of clauses (ii), (iii) and (iv) that such action shall
not adversely affect in any material respect the interests of any Holder of
Trust Securities:
(i) unless an Event of Default shall have occurred and be
continuing, with respect to the acceptance of appointment of a successor
trustee;
(ii) to cure any ambiguity;
(iii) to correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this
Declaration or make any other provisions with respect to matters or
questions arising under this Declaration which shall not be inconsistent
with the other provisions of this Declaration;
(iv) modify, eliminate or add to any provisions of this Declaration
to the extent deemed necessary or advisable by any of the Regular Trustees
to ensure that the Trust will be classified for United States federal
income tax purposes as a grantor trust or to ensure that the Trust will not
be required to register as an Investment Company under the Investment
Company Act.
(h) any amendment to this Declaration shall be effective when notice of
such amendment is given to the holders of the Trust Securities in accordance
with Section 14.1 hereof.
SECTION 12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the terms of this Declaration, the terms of the
Securities or the rules of any stock exchange or quotation system or market on
which the Capital Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 25% in liquidation amount of the Securities of such
class. Such direction shall be given by delivering to the Regular Trustees one
or more calls in a writing stating that the signing Holders of Securities wish
to call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling a meeting shall
specify in writing the Security Certificates held by the Holders of Securities
exercising the right to call a meeting and only those Securities specified shall
be counted for purposes of determining whether the required percentage set forth
in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
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(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 10 days and not more
than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange or quotation system or
market on which the Capital Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of Securities owning not
less than the minimum amount of Securities in liquidation amount that would
be necessary to authorize or take such action at a meeting at which all
Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be
given to the Holders of Securities entitled to vote who have not consented
in writing. The Regular Trustees may specify that any written ballot
submitted to the Security Holders for the purpose of taking any action
without a meeting shall be returned to the Trust within the time specified
by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules of any stock
exchange or quotation system or market on which the Capital Securities are
then listed or trading, otherwise provides, the Regular Trustees, in their
sole discretion, shall establish all other provisions relating to meetings
of Holders of Securities, including notice of the time, place or purpose of
any meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a meeting,
the establishment of a record date, quorum requirements, voting in person
or by proxy or any other matter with respect to the exercise of any such
right to vote.
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ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE.
The Trustee that acts as initial Property Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Property Trustee represents and warrants, as applicable, to the Trust
and the Sponsor at the time of the Successor Property Trustee's acceptance of
its appointment as Property Trustee that:
(a) the Property Trustee is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing, with trust power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the Property Trustee of
this Declaration has been duly authorized by all necessary corporate action on
the part of the Property Trustee. This Declaration has been duly executed and
delivered by the Property Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) the execution, delivery and performance of this Declaration by the
Property Trustee does not conflict with or constitute a breach of the charter or
by-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the execution,
delivery or performance by the Property Trustee of this Declaration.
SECTION 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware corporation, duly organized,
validly existing and in good standing, with full power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
this Declaration.
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a
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legal, valid and binding obligation of the Delaware Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware. The Delaware Trustee satisfies for
the Trust the requirements set forth in Section 3807(a) of the Business Trust
Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 NOTICES.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Securities):
Bay View Capital I
c/o Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Attention: Robert J. Flax
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
Wilmington Trust Company
Attention: Corporate Trust Administration
(c) if given to the Property Trustee, at the mailing address set forth
below (or such other address as the Property Trustee may give notice of to the
Holders of the Securities):
Wilmington Trust Company
Attention:Corporate Trust Administration
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(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
c/o Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Attention: Chief Financial Officer
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in
person, delivered by overnight courier, telecopied with receipt confirmed (by
telephone or otherwise) or mailed by first class mail, postage prepaid except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
SECTION 14.2 GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 14.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
SECTION 14.4 HEADINGS.
The Table of Contents, Cross-Reference Table and headings contained in this
Declaration are inserted for convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
SECTION 14.5 SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
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SECTION 14.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
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IN WITNESS WHEREOF, the undersigned have caused this Declaration to be
executed as of the day and year first above written.
/s/ Robert J. Flax, as Regular Trustee
/s/ David A. Heaberlin, as Regular Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ /s/ Donald G. Mackelcan
_____________________________________
Name: Donald G. Mackelcan
Title: Assistant Vice President
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /s/ Donald G. Mackelcan
____________________________________
Name: Donald G. Mackelcan
Title: Assistant Vice President
BAY VIEW CAPITAL CORPORATION,
as Sponsor
By: /s/ Robert J. Flax
____________________________________
Name: Robert J. Flax
Title: Executive Vice President &
Secretary
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ANNEX I: TERMS OF
9.76% CAPITAL SECURITIES
COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust,
dated as of December 21, 1998 (as amended from time to time, the "Declaration"),
the designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Capital Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration or, if not defined in such Declaration, as defined in
the Prospectus referred to below):
1. DESIGNATION AND NUMBER.
(a) CAPITAL SECURITIES. 3,200,000 Capital Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of
$80,000,000 (or 3,680,000 Capital Securities with an aggregate liquidation
amount with respect to the assets of the Trust of $92,000,000 if the over
allotment option in the Underwriting Agreement is exercised in full), and a
liquidation amount with respect to the assets of the Trust of $25 per Capital
Security, are hereby designated for the purposes of identification only as 9.76%
Capital Securities (the "Capital Securities"). The Capital Security
Certificates evidencing the Capital Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice
or to conform to the rules of any stock exchange on which the Capital Securities
are listed.
(b) COMMON SECURITIES. 98,970 Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of
$2,474,250 (or 113,815 Common Securities with an aggregate liquidation amount
with respect to the assets of the Trust of $2,845,375 if the over allotment
option in the Underwriting Agreement is exercised in full)and a liquidation
amount with respect to the assets of the Trust of $25 per Common Security, are
hereby designated for the purposes of identification only as "Common Securities"
(the "Common Securities"). The Common Security Certificates evidencing the
Common Securities shall be in the form of Exhibit A-2 to the Declaration, with
such changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
2. DISTRIBUTIONS.
(a) Distributions payable on each Security will be fixed at a rate per
annum of 9.76% (the "Coupon Rate") of the stated liquidation amount of $25 per
Security, such rate being the rate of interest payable on the Debentures to be
held by the Property Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate (to
the extent permitted by applicable law). The term "Distributions" as used
herein includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the
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Property Trustee and to the extent the Property Trustee has funds available
therefor. The amount of Distributions payable for any period will be computed
for any full quarterly Distribution period on the basis of a 360-day year of
twelve 30-day months, and for any period shorter than a full calendar month, the
actual number of days elapsed in such a 30-day month.
(b) Distributions on the Securities will be cumulative, will accumulate
from December 21, 1998, and will be payable quarterly in arrears, on March 31,
June 30, September 30 and December 31 of each year, commencing on March 31, 1999
except as otherwise described below. So long as no Indenture Event of Default
has occurred and is continuing, the Sponsor has the right under the Indenture to
defer payments of interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding 20 consecutive quarters (each
an "Extension Period"), during which Extension Period no interest shall be due
and payable on the Debentures, provided that no Extension Period shall last
beyond the date of maturity or any redemption date of the Debentures. As a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accumulate with interest
thereon (to the extent permitted by applicable law) at the Coupon Rate
compounded quarterly during any such Extension Period. Prior to the termination
of any such Extension Period, the Sponsor may further extend such Extension
Period; provided that such Extension Period together with all such previous and
further extensions thereof may not exceed 20 consecutive quarters or extend
beyond the maturity or any redemption date of the Debentures. Payments of
accumulated Distributions will be payable to Holders as they appear on the books
and records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Sponsor may commence a new Extension Period, subject to
the above requirements.
(c) Distributions on the Securities will be payable to the Holders thereof
as they appear on the books and records of the Trust on the relevant record
dates. While the Capital Securities remain in book-entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment
dates, which payment dates correspond to the interest payment dates on the
Debentures. Subject to any applicable laws and regulations and the provisions
of the Declaration, each such payment in respect of the Capital Securities will
be made as described under the heading "Description of the Capital Securities --
Book-Entry Only Issuance - The Depository Trust Company in the Prospectus
Supplement dated December 16, 1998 (the "Prospectus Supplement") to the Base
Prospectus dated October 19, 1998 (together, the "Prospectus") of the Trust
included in the Registration Statement on Form S-3 of the Sponsor and the Trust.
The relevant record dates for the Common Securities shall be the same record
date as for the Capital Securities. If the Capital Securities shall not
continue to remain in book-entry only form, the relevant record dates for the
Capital Securities shall be at least 15 Business Days prior to the relevant
payment date, provided that such record date must conform to the rules of any
securities exchange on which the securities are listed and, if none, shall be
selected by the Regular Trustees, which dates shall be at least one Business Day
before the relevant payment dates, which payment dates correspond to the
interest payment dates on the Debentures. Distributions payable on any
Securities that are not punctually paid on any Distribution payment date, as a
result of the Sponsor having failed to make a payment under the Debentures, will
cease
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to be payable to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will instead be payable to
the Person in whose name such Securities are registered on the special record
date or other specified date determined in a like manner as provided in Section
307 of the Indenture. If any date on which Distributions are payable on the
Securities is not a Business Day, then payment of the Distribution payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(d) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities of creditors an amount equal to the
aggregate of the stated liquidation amount of $25 per Security plus accumulated
and unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless such dissolution, winding-up or termination
occurs in connection with a Special Event in which, in accordance with Section
4(c), Debentures in an aggregate stated principal amount equal to the aggregate
stated liquidation amount of such Securities, with an interest rate equal to the
Coupon Rate of, and bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on, such Securities, shall be
distributed on a Pro Rata basis to the Holders of the Securities in exchange for
such Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION.
(a) Upon the repayment of the Debentures in whole or in part, whether at
stated maturity or upon redemption (either at the option of the Sponsor or
pursuant to a Special Event as described below), the proceeds from such
repayment or payment shall be simultaneously applied to redeem Securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed at a redemption price per Security equal to the
redemption price of the Debentures, together with accrued and unpaid
Distributions thereon through the date of the redemption, payable in cash (the
"Redemption Price"). Holders will be given not less than 30 nor more than 60
days' notice of such redemption.
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(b) If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Capital Securities will be redeemed Pro Rata and
the Capital Securities to be redeemed will be as described in Section 4(g)
below.
(c) If, at any time, a Tax Event, an Investment Company Event or a Capital
Treatment Event (each, as defined below, a "Special Event") shall occur and be
continuing, the Regular Trustees may with the prior written consent of the
Sponsor, dissolve the Trust and, after satisfaction of creditors, cause
Debentures held by the Property Trustee, having an aggregate principal amount
equal to the aggregate stated liquidation amount of, with an interest rate
identical to the Coupon Rate of, and accrued and unpaid interest equal to
accumulated and unpaid Distributions on, and having the same record date for
payment as the Securities, to be distributed to the Holders of the Securities in
liquidation of such Holders' interests in the Trust on a Pro Rata basis, within
90 days following the occurrence of such Special Event (the "90 Day Period");
provided, however, that if at the time there is available to the Trust the
opportunity to eliminate, within such 90-day Period the Special Event by taking
some ministerial action (a "Ministerial Action"), such as filing a form or
making an election, or pursuing some other similar reasonable measure which in
the sole judgment of the Company has or will cause no adverse effect on the
Trust, the Company or the holders of the Trust Securities and will involve no
material cost, the Trust will pursue such measure in lieu of dissolution.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
(a "Dissolution Tax Opinion") to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court or governmental or regulatory agency or authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination) or (c) any official interpretation or
pronouncement by any legislative body, court or governmental or regulatory
agency or authority that provides for a position with respect to such laws or
regulations that differs from the theretofore generally accepted position, which
amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced, in each case on or after
the date of the Prospectus Supplement (collectively, a "Change in Tax Law"),
there is more than a substantial risk that (i) the Trust is, or will be within
90 days of the date thereof, subject to federal income tax with respect to
interest accrued or received on the Debentures, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount of
other taxes, duties or other governmental charges or (iii) interest (including
original issue discount) payable by the Company to the Trust on the Debentures
is not, or within 90 days of the date thereof will not be, deductible by the
Company for United States income tax purposes on a current accrual basis (by
reason of deferral, disallowance or otherwise).
"Investment Company Event" means that each of the Regular Trustees shall
have received an opinion of a nationally recognized independent counsel to the
effect that, as a result of the occurrence of a change in law or regulation or a
change in interpretation or application of
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law or regulations by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" which is required to be registered under the Investment Company Act of
1940 as amended (the "1940 Act").
"Capital Treatment Event" means the reasonable determination by the Company
that, as a result of the occurrence of any amendment to, or change (including
any announced prospective change) in, the laws (or any rules or regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such proposed change, pronouncement,
action or decision is announced on or after the date of original issuance of the
Capital Securities, there is more than an insubstantial risk that the Company
will not be entitled to treat the allowable amount (subject to current
interpretations of the Federal Reserve as of the date of the Prospectus
Supplement) of the liquidation amount of the Capital Securities as "Tier 1
Capital" (or the then equivalent thereof) applied as if the Company (or its
successor) were a bank holding company for purposes of the capital adequacy
guidelines of the Federal Reserve (or any successor regulatory authority with
jurisdiction over bank holding companies), or any capital adequacy guidelines as
then in effect and applicable to the Company.
On and from the date fixed by the Regular Trustees for any distribution of
Debentures upon dissolution of the Trust: (i) the Securities will no longer be
deemed to be outstanding, (ii) The Depository Trust Company (the Depository") or
its nominee (or any successor Clearing Agency or its nominee), as the record
Holder of the Capital Securities, will receive a registered certificate or
certificates representing the Debentures to be delivered upon such distribution,
and (iii) any certificates representing Securities, except for certificates
representing Capital Securities held by the Depository or its nominee (or any
successor Clearing Agency or its nominee), will be deemed to represent
Debentures having an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the Coupon Rate of,
and accrued and unpaid interest equal to accumulated and unpaid Distributions on
such Capital Securities until such certificates are presented to the Sponsor or
its agent for transfer, exchange or reissuance.
(d) The Trust may not redeem fewer than all the outstanding Securities
unless all accumulated and unpaid Distributions have been or are
contemporaneously paid (or such payment duly provided for) on all Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
(e) If the Debentures are distributed to Holders of the Securities,
pursuant to the terms of the Indenture, the Sponsor will use its best efforts to
have the Debentures listed on the Nasdaq National Market or on such other
national securities exchange or similar organization as the Capital Securities
were listed or quoted immediately prior to the distribution of the Debentures.
(f) Notice of any redemption of, or notice of distribution of Debentures
in exchange for the Securities (a "Redemption/Distribution Notice") will be
given by the Trust by mail to
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each Holder of Securities to be redeemed or exchanged not fewer than 30 nor more
than 60 days before the date fixed for redemption or exchange thereof which, in
the case of a redemption, will be the date fixed for redemption of the
Debentures. For purposes of the calculation of the date of redemption or
exchange and the dates on which notices are given pursuant to this Section 4(f),
a Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, or by such other
means suitable to assure delivery of such written notice, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the books
and records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(g) In the event that fewer than all the outstanding Capital Securities
are to be redeemed, the Capital Securities to be redeemed shall be redeemed Pro
Rata from each Holder of Capital Securities, it being understood that, in
respect of Capital Securities registered in the name of and held of record by
the Depository or its nominee (or any successor Clearing Agency or its nominee)
or any nominee, the distribution of the proceeds of such redemption will be made
to each Clearing Agency Participant (or Person on whose behalf such nominee
holds such securities) in accordance with the procedures applied by such agency
or nominee.
(h) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 4 (which notice will be
irrevocable), then (a) while the Capital Securities are in book-entry form, with
respect to the Capital Securities, by 12:00 noon, New York City time, on the
redemption date, provided that the Sponsor has paid the Property Trustee a
sufficient amount of cash in connection with the related redemption or maturity
of the Debentures, the Property Trustee will deposit irrevocably with the
Depository or its nominee (or successor Clearing Agency or its nominee) funds
sufficient to pay the applicable Redemption Price with respect to the Capital
Securities and will give the Depository irrevocable instructions and authority
to pay the Redemption Price to the Holders of the Capital Securities, and (b)
with respect to Capital Securities issued in definitive form and Common
Securities, provided that the Sponsor has paid the Property Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Debentures, the Property Trustee will pay the relevant Redemption Price to the
Holders of such Securities by check mailed to the address of the relevant Holder
appearing on the books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds deposited as
required, if applicable, then immediately prior to the close of business on the
required date of such deposit, Distributions will cease to accumulate on the
Securities so called for redemption and all rights of Holders of such Securities
so called for redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on such
Redemption Price. Neither the Regular Trustees nor the Trust shall be required
to register or cause to be registered the transfer of any Securities that have
been so called for redemption. If any date fixed for redemption of Securities
is not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment
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will be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If payment
of the Redemption Price in respect of any Securities is improperly withheld or
refused and not paid either by the Property Trustee or by the Sponsor as
guarantor pursuant to the relevant Securities Guarantee, Distributions on such
Securities will continue to accumulate from the original redemption date to the
actual date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption Price.
(i) Redemption/Distribution Notices shall be sent by the Regular Trustees
on behalf of the Trust to (a) in respect of the Capital Securities, the
Depository or its nominee (or any successor Clearing Agency or its nominee) if
the Global Certificates have been issued or, if Definitive Capital Security
Certificates have been issued, to the Holder thereof, and (b) in respect of the
Common Securities to the Holder thereof.
(j) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Sponsor or any of its
subsidiaries may at any time and from time to time purchase outstanding Capital
Securities by tender, in the open market or otherwise.
5. VOTING RIGHTS - CAPITAL SECURITIES.
(a) Except as provided under Sections 5(b) and 7 and as otherwise required
by law and the Declaration, the Holders of the Capital Securities will have no
voting rights.
(b) Subject to the requirements set forth in this paragraph, the Holders
of a Majority in liquidation amount of the Capital Securities, voting separately
as a class, may direct the time, method, and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any trust or
power conferred upon the Property Trustee under the Declaration, including the
right to direct the Property Trustee, as holder of the Debentures, to (i)
exercise the remedies available under the Indenture with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under the Indenture, or (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable;
provided, however, that, if an Indenture Event of Default has occurred under
Section 2.9(d) or 2.9(e) of the Supplemental Indenture and is continuing, then
the Holders of 25% in liquidation amount of the Capital Securities, voting
separately as a class, may direct the Property Trustee, as holder of the
Debentures, to declare the principal amount and interest payable on all the
Debentures to be due and payable immediately; and provided further that where a
consent or other action under the Indenture would require the consent or act of
(a) the Holders of greater than a majority in principal amount of Debentures
affected thereby (a "Super Majority") or (b) each Holder of Debentures affected
thereby, the Property Trustee may only give such consent or take such action at
the written direction of, in the case of clause (a) above, the Holders of at
least the proportion in liquidation amount of the Capital Securities which the
relevant Super Majority represents of the aggregate liquidation amount of the
Capital Securities outstanding or, in the case of clause (b) above, each holder
of the Capital Securities affected thereby. The Property Trustee shall not
revoke any action previously authorized or approved by a vote of the Holders of
the Capital Securities. Other than with respect to directing the time, method
and place
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of conducting any remedy available to the Property Trustee or the Debt Trustee
as set forth above, the Property Trustee shall not take any action in accordance
with the directions of the Holders of the Capital Securities under this
paragraph unless each Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action and
each Holder will be treated as owning an undivided beneficial interest in the
Debentures. If the Property Trustee fails to enforce its rights under the
Debentures, a Holder of Capital Securities, to the fullest extent permitted by
law, may institute a legal proceeding directly against the Sponsor to enforce
the Property Trustee's rights under the Debentures without first instituting any
legal proceeding against the Property Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Sponsor to pay
interest or principal on the Debentures on the date such interest or principal
is otherwise payable (or in the case of redemption, on the redemption date),
then a Holder of Capital Securities may directly institute a proceeding for
enforcement of payment to such Holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Capital Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the Debentures. Notwithstanding any payments
made to such Holder by the Sponsor, in connection with such Direct Action, the
Sponsor shall remain obligated to pay the principal or interest on such
Debentures, and the Sponsor shall be subrogated to the rights of such Holder of
Capital Securities to the extent of any payment made by the Sponsor to such
Holder of Capital Securities in such Direct Action. Except as provided in this
paragraph, the Holders of Capital Securities shall have no right or power to
exercise directly any other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Capital Securities may be given at
a separate meeting of Holders of Capital Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Capital Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Capital Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Capital Securities will be
required for the Trust to redeem and cancel Capital Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
Notwithstanding that Holders of Capital Securities are entitled to vote or
consent under any of the circumstances described above, any of the Capital
Securities that are owned at such time by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
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6. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under Sections 6(b), (c) and 7 and as otherwise
required by law and the Declaration, the Holders of the Common Securities will
not have voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with
Article V of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after any Event of
Default with respect to the Capital Securities has been cured, waived, or
otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under the Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy available to the Debt Trustee, or
exercising any trust or power conferred on the Debt Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under the Indenture, or (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable,
provided that, where a consent or action under the Indenture would require the
consent or act of (a) Super Majority or (b) each Holder of Debentures affected
thereby, the Property Trustee may only give such consent or take such action at
the written direction of, in the case of clause (a) above, the Holders of at
least the proportion in liquidation amount of the Common Securities which the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding or, in the case of clause (b) above, each Holder of the
Common Securities affected thereby. Pursuant to this Section 6(c), the Property
Trustee shall not revoke any action previously authorized or approved by a vote
of the Holders of the Capital Securities. Other than with respect to directing
the time, method and place of conducting any remedy available to the Property
Trustee or the Debt Trustee as set forth above, the Property Trustee shall not
take any action in accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Property Trustee has obtained an
opinion of tax counsel to the effect that for the purposes of United States
federal income tax the Trust will not be classified as other than a grantor
trust on account of such action. If the Property Trustee fails to enforce its
rights under the Declaration, any Holder of Common Securities may institute a
legal proceeding directly against any Person to enforce the Property Trustee's
rights under the Declaration, without first instituting a legal proceeding
against the Property Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be given at a
separate meeting of Holders of Common Securities convened for such purpose, at a
meeting of all of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description
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of any resolution proposed for adoption at such meeting on which such Holders
are entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be required
for the Trust to redeem and cancel Common Securities or to distribute the
Debentures in accordance with the Declaration and the terms of the Securities.
7. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.1 of the Declaration,
if any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, any action that would adversely affect the
powers, preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise, then the Holders of outstanding
Securities voting together as a single class, will be entitled to vote on such
amendment or proposal (but not on any other amendment or proposal) and such
amendment or proposal shall not be effective except with the approval of the
Holders of at least a Majority in liquidation amount of the Securities affected
thereby; provided, however, if any amendment or proposal referred to above would
adversely affect only the Capital Securities or only the Common Securities, then
only the affected class will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with the approval
of a Majority in liquidation amount of such class of Securities.
(b) In the event the consent of the Property Trustee, as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as directed by a Majority
in liquidation amount of the Securities voting together as a single class;
provided, however, that where a consent under the Indenture would require the
consent of the holders of greater than a majority in aggregate principal amount
of the Debentures, the Property Trustee may only give such consent at the
direction of the Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; provided, further, that the
Property Trustee shall not take any action in accordance with the directions of
the Holders of the Securities under this Section 7(b) unless each Trustee has
obtained an opinion of tax counsel to the effect that for the purposes of United
States federal income tax the Trust will not be classified as other than a
grantor trust on account of such action.
8. PRO RATA.
A reference in these terms of the Securities to any distribution or
treatment as being "Pro Rata" shall mean pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such
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payment shall be paid first to each Holder of the Capital Securities pro rata
according to the aggregate liquidation amount of Capital Securities held by the
relevant Holder relative to the aggregate liquidation amount of all Capital
Securities outstanding, and only after satisfaction of all amounts owed to the
Holders of the Capital Securities, to each Holder of Common Securities pro rata
according to the aggregate liquidation amount of Common Securities held by the
relevant Holder relative to the aggregate liquidation amount of all Common
Securities outstanding.
9. RANKING.
The Capital Securities rank pari passu and payment thereon shall be made
Pro Rata with the Common Securities except that, where an Event of Default
occurs and is continuing, the rights of Holders of the Common Securities to
payment in respect of Distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights to payment of the Holders of the
Capital Securities.
10. LISTING.
The Regular Trustees shall use their best efforts to cause the Capital
Securities to be listed for quotation on the Nasdaq National Market.
11. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE.
Each Holder of Capital Securities and Common Securities, by the acceptance
thereof, agrees to the provisions of the Capital Securities Guarantee and the
Common Securities Guarantee, respectively, including the subordination
provisions therein and to the provisions of the Indenture.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive or similar rights to
subscribe for any additional securities.
13. MISCELLANEOUS.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Capital Securities
Guarantee or the Common Securities Guarantee (as may be appropriate), and the
Indenture to a Holder without charge on written request to the Sponsor at its
principal place of business.
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EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This
Capital Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depositary") or a nominee of the Depositary. This Capital
Security is exchangeable for Capital Securities registered in the name of a
Person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Capital
Security (other than a transfer of this Capital Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or to a successor Depositary
or its nominee) may be registered except in limited circumstances.
Unless this Capital Security is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
Trust or its agent for registration of transfer, exchange or payment, and any
Capital Security issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
Certificate Number: Number of Capital Securities: _____
CUSIP NO. 07262R 20 7
Certificate Evidencing Capital Securities
of
Bay View Capital I
9.76% Capital Securities
(liquidation amount $25 per Capital Security)
Bay View Capital I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ____________ (the
"Holder") is the registered owner of Capital Securities of the Trust
representing undivided beneficial interests in the assets of the Trust,
designated the Bay View Capital I 9.76% Capital Securities, (liquidation amount
$25 per Capital Security) (the "Capital Securities'). The Capital Securities
are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided for in the Declaration (as defined below).
The designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Capital Securities represented hereby are issued and shall
in all respects be
64
<PAGE>
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of December 21, 1998, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Capital
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Capital Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Capital Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder agrees to be bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Capital Securities as
evidence of indirect beneficial ownership in the Debentures.
Unless the Property Trustee's Certificate of Authentication hereon has been
properly executed, these Capital Securities shall not be entitled to any benefit
under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate on December __,
1998.
Bay View Capital I
_______________________________
Name:
Title: Regular Trustee
[FORM OF CERTIFICATE OF AUTHENTICATION]
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Security Certificates referred to in the within-
mentioned Declaration.
Dated: ________________
WILMINGTON TRUST COMPANY,
as Property Trustee
By:______________________
65
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed at a rate per
annum of 9.76% (the "Coupon Rate") of the stated liquidation amount of $25 per
Capital Security, such rate being the rate of interest payable on the Debentures
to be held by the Property Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate (to
the extent permitted by applicable law). The term "Distributions" as used
herein includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Property Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accrue from December 21, 1998 and will be
payable quarterly in arrears, on March 31, June 30, September 30 and December 31
of each year, commencing on March 31, 1999, which payment dates shall correspond
to the interest payment dates on the Debentures, to Holders of record at the
close of business on the regular record date for such Distribution which shall
be the close of business on the Business Day next preceding such Distribution
payment date unless otherwise provided in the Declaration. The Sponsor has the
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarters (each an "Extension Period") provided that no
Extension Period shall last beyond the date of the maturity or any redemption
date of the Debentures and, as a consequence of such deferral, Distributions
will also be deferred. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted by applicable
law) at the Coupon Rate compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, the Sponsor may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity or any redemption date of the Debentures.
Payments of accrued Distributions will be payable to Holders as they appear on
the books and records of the Trust on the first record date after the end of the
Extension Period. Upon the termination of any Extension Period and the payment
of all amounts then due, the Sponsor may commence a new Extension Period,
subject to the above requirements.
The Capital Securities shall be redeemable as provided in the Declaration.
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security Certificate to:
________________________________________________________________________________
_______________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee) and irrevocably appoints
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
agent to transfer this Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:_____________________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Capital Security
Certificate)
Signature Guarantee:*______________________
* Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee
67
<PAGE>
program" as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and Exchange
Act of 1934, as amended.
68
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number: ________ Number of Common Securities: _______
Certificate Evidencing Common Securities
of
Bay View Capital I
Common Securities
(liquidation amount $25 per Common Security)
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE LIMITED CIRCUMSTANCES AS
DESCRIBED IN THE DECLARATION (AS DEFINED BELOW):
Bay View Capital I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the Bay
View Capital I Common Securities (liquidation amount $25 per Common Security)
(the "Common Securities"). Except as provided in Section 9.1(c) of the
Declaration (as defined below), the Common Securities are not transferable and
any attempted transfer hereof shall be void. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of December 21, 1998, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration,
the Common Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder agrees to be bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
69
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day of
December, 1998.
Bay View Capital I
By:____________________________
Name:
Title: Regular Trustee
70
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate per
annum of 9.76% (the "Coupon Rate") of the stated liquidation amount of $25 per
Common Security, such rate being the rate of interest payable on the Debentures
to be held by the Property Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate (to
the extent permitted by applicable law). The term "Distributions" as used
herein includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Property Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Common Securities
will be cumulative, will accrue from December 21, 1998 and will be payable
quarterly in arrears, on March 31, June 30, September 30 and December 31 of each
year, commencing on March 1, 1999, which payment dates shall correspond to the
interest payment dates on the Debentures, to Holders of record at the close of
business on the regular record date for such Distribution which shall be the
close of business on the Business Day next preceding such Distribution payment
date unless otherwise provided in the Declaration. The Sponsor has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding 20
consecutive quarters (each an "Extension Period") provided that no Extension
Period shall last beyond the date of maturity of the Debentures and, as a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the Coupon Rate compounded
quarterly during any such Extension Period. Prior to the termination of any
such Extension Period, the Sponsor may further extend such Extension Period;
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarters or extend beyond the
date of maturity of the Debentures. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination
of any Extension Period and the payment of all amounts then due, the Sponsor may
commence a new Extension Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the Declaration.
71
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security Certificate to:
________________________________________________________________________________
_______________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee) and irrevocably appoints
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
agent to transfer this Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:_____________________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Capital Security
Certificate)
Signature Guarantee:*______________________
* Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee
72
<PAGE>
program" as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and Exchange
Act of 1934, as amended.
73
<PAGE>
EXHIBIT 4.2
- --------------------------------------------------------------------------------
Bay View Capital Corporation
___________________________________________
CAPITAL SECURITIES GUARANTEE AGREEMENT
___________________________________________
Dated as of December 21, 1998
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions and Interpretation................... 1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application................. 4
Section 2.2. Lists of Holders of Securities................... 4
Section 2.3. Reports by the Guarantee Trustee................. 5
Section 2.4. Periodic Reports to Guarantee Trustee............ 5
Section 2.5. Evidence of Compliance with Conditions Precedent. 5
Section 2.6. Events of Default; Waiver........................ 5
Section 2.7. Guarantee Event of Default; Notice............... 6
Section 2.8. Conflicting Interests............................ 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee......... 6
Section 3.2. Certain Rights of Guarantee Trustee................ 8
Section 3.3. Not Responsible for Recitals or Issuance of Capital
Securities Guarantee............................... 10
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility..................... 10
Section 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustee.................................. 11
ARTICLE V
GUARANTEE
Section 5.1. Guarantee.......................................... 11
Section 5.2. Waiver of Notice and Demand........................ 12
Section 5.3. Obligations Not Affected........................... 12
Section 5.4. Rights of Holders.................................. 12
Section 5.5. Guarantee of Payment............................... 13
Section 5.6. Subrogation........................................ 13
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Section 5.7. Independent Obligations............................ 13
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. Limitation of Transactions......................... 14
Section 6.2. Ranking............................................ 14
ARTICLE VII
TERMINATION
Section 7.1. Termination........................................ 14
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Exculpation........................................ 15
Section 8.2. Indemnification.................................... 15
ARTICLE IX
MISCELLANEOUS
Section 9.1. Successors and Assigns............................. 16
Section 9.2. Amendments......................................... 16
Section 9.3. Notices............................................ 16
Section 9.4. Benefit............................................ 17
Section 9.5. Governing Law...................................... 18
</TABLE>
ii
<PAGE>
CAPITAL SECURITIES GUARANTEE AGREEMENT
This CAPITAL SECURITIES GUARANTEE AGREEMENT (the "Capital Securities
Guarantee"), dated as of December 21, 1998 is executed and delivered by Bay View
Capital Corporation, a Delaware corporation (the "Guarantor"), and Wilmington
Trust Company, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Capital Securities (as
defined herein) of Bay View Capital I, a Delaware statutory business trust (the
"Issuer").
Whereas, pursuant to an amended and restated Declaration of Trust (the
"Declaration"), dated as of December 21, 1998 among the Trustees of the Issuer
named therein, the Guarantor, as Sponsor, and the Holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing Capital Securities, having an aggregate liquidation amount of
$80,000,000 ($92,000,000 if the Underwriters' over-allotment option is exercised
in full) designated the 9.76% Cumulative Capital Securities (the "Capital
Securities").
Whereas, as incentive for the Holders to purchase the Capital Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Capital Securities guarantee, to pay to the Holders of the
Capital Securities the guarantee payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein.
Whereas, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Common Securities Guarantee") in
substantially identical terms to this Capital Securities Guarantee for the
benefit of the Holders of the Common Securities (as defined in the Declaration),
except that if an event of default (as defined in the Indenture (as defined
herein)) with respect to the Debentures, has occurred and is continuing, the
rights of Holders of the Common Securities to receive guarantee payments under
the Common Securities Guarantee are subordinated to the rights of Holders of
Capital Securities to receive guarantee payments under this Capital Securities
Guarantee.
Now, therefore, in consideration of the purchase by each Holder of Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Capital Securities Guarantee
for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions and Interpretation.
------------------------------
In this Capital Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Capital Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
<PAGE>
(b) terms defined in the Declaration as at the date of execution of
this Capital Securities Guarantee have the same meaning when used in this
Capital Securities Guarantee unless otherwise defined in this Capital Securities
Guarantee;
(c) a term defined anywhere in this Capital Securities Guarantee has
the same meaning throughout;
(d) all references to "the Capital Securities Guarantee" or "this
Capital Securities Guarantee" are to this Capital Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Capital Securities Guarantee to Articles
and Sections are to Articles and Sections of this Capital Securities Guarantee,
unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Capital Securities Guarantee, unless otherwise defined in this
Capital Securities Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person; provided, however, that the Authorized Officer signing an
Officers' Certificate given pursuant to Section 314(a)(4) of the Trust Indenture
Act shall be the principal executive, financial or accounting officer of such
Person.
"Base Indenture" means the Indenture dated as of December 21, 1998 between
the Company and Wilmington Trust Company, as trustee.
"Common Securities Guarantee" means the Common Securities Guarantee
Agreement dated as of December 21, 1998 of the Sponsor in respect of the Common
Securities.
"Corporate Trust Office" means the office of the Guarantee Trustee at which
the corporate trust business of the Guarantee Trustee shall, at any particular
time, be principally administered, which office at the date of execution of this
Agreement is located at 1100 North Market Street, Wilmington, Delaware 19890-
00001.
"Covered Person" means any Holder or beneficial owner of Capital
Securities.
"Declaration Event of Default" means an Event of Default as defined in the
Declaration.
"Guarantee Event of Default" means the failure of the Guarantor to perform
any of its payment or other obligations under this Capital Securities Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Capital Securities, to the extent not paid or
made by the Issuer: (i) any accumulated and unpaid Distributions which are
required to be paid on such Capital
2
<PAGE>
Securities to the extent the Issuer shall have funds available therefor, (ii)
the redemption price (the "Redemption Price"), and all accumulated and unpaid
Distributions to but excluding the date of redemption to the extent the Issuer
has funds available therefor, with respect to any Capital Securities called for
redemption by the Issuer, and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for Capital Securities as
provided in the Declaration), the lesser of (a) the aggregate of the liquidation
amount and all accumulated and unpaid Distributions on the Capital Securities to
but excluding the date of payment, to the extent the Issuer shall have funds
available therefor, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution"). If an Event of Default (as defined in the
Indenture) with respect to the Debentures has occurred and is continuing, the
rights of holders of the Common Securities to receive payments under the Common
Securities Guarantee Agreement are subordinated to the rights of Holders of
Capital Securities to receive Guarantee Payments.
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Capital Securities Guarantee and thereafter means each such
Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Capital Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Capital Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor; provided that in determining
whether the Guarantee Trustee is protected in acting upon the instructions of
the Holders, only Capital Securities the Guarantee Trustee knows to be so owned
shall be disregarded.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"Indenture" means the Base Indenture as supplemented by the Supplemental
Indenture, and as the same may be further amended or supplemented from time to
time in accordance with its terms.
"List of Holders" shall have the meaning assigned thereto in Section 2.2(a)
hereof.
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Capital Securities or, except as provided by the
Trust Indenture Act, a vote by Holder(s) of Capital Securities, voting
separately as a class, of more than 50% of the liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to but excluding the date upon which the
voting percentages are determined) of all outstanding Capital Securities.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer within the Corporate Trust Office of the Guarantee Trustee with direct
responsibility for the
3
<PAGE>
administration of this Guarantee, including any vice president, any assistant
vice president, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Supplemental Indenture" means the First Supplemental Indenture dated as of
December 21, 1998 between the Guarantor and Wilmington Trust Company, as
trustee, as the same may be further amended or supplemented from time to time in
accordance with its terms.
"Trust Securities" means the Common Securities and the Capital Securities.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
--------------------------------
(a) This Capital Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Capital Securities
Guarantee and shall, to the extent applicable, be governed by such provisions;
and
(b) if and to the extent that any provision of this Capital Securities
Guarantee limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
Section 2.2. Lists of Holders of Securities.
------------------------------
(a) The Guarantor shall provide the Guarantee Trustee with a list, in
such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Capital Securities ("List of Holders") as of
such date, (i) within 14 days after each record date for payment of
Distributions, as of such record date, and (ii) at any other time within 30 days
of receipt by the Guarantor of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the Guarantee
Trustee, provided, that the Guarantor shall not be obligated to provide such
List of Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the Guarantee Trustee by the Guarantor or in the
event that the Guarantee Trustee is the Registrar under the Declaration. The
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
4
<PAGE>
Section 2.3. Reports by the Guarantee Trustee.
--------------------------------
Within 60 days after May 15 of each year, the Guarantee Trustee shall
provide to the Holders of the Capital Securities such reports as are required by
Section 313 of the Trust Indenture Act if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the Trust Indenture
Act.
Section 2.4. Periodic Reports to Guarantee Trustee.
-------------------------------------
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314 of the Trust Indenture Act
(if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Guarantee
Trustee is for informational purposes only and the Guarantee Trustee's receipt
of such shall not constitute constructive notice of any information contained
therein, including the Guarantor's compliance with any of its covenants
hereunder (as to which the Guarantee Trustee is entitled to rely exclusively on
Officers' Certificates).
Section 2.5. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Capital
Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.6. Events of Default; Waiver.
-------------------------
The Holders of a Majority in liquidation amount of Capital Securities may,
by vote, on behalf of the Holders of all of the Capital Securities, waive any
past Guarantee Event of Default and its consequences.
Upon such waiver, any such Guarantee Event of Default shall cease to exist,
and any Guarantee Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Capital Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Guarantee Event of
Default or impair any right consequent thereon.
Section 2.7. Guarantee Event of Default; Notice.
----------------------------------
(a) The Guarantee Trustee shall, within 90 days after the occurrence
of an Guarantee Event of Default actually known to a Responsible Officer of the
Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders
of the Capital Securities, notices of all such Events of Default, unless such
defaults have been cured before the giving of such notice,
5
<PAGE>
provided, that, the Guarantee Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Guarantee Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of the Capital Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Guarantee Event of Default unless the Guarantee Trustee shall have received
written notice, or of which a Responsible Officer of the Guarantee Trustee
charged with the administration of the Declaration shall have obtained actual
knowledge.
Section 2.8. Conflicting Interests.
---------------------
The Declaration shall be deemed to be specifically described in this
Capital Securities Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
------------------------------------------
(a) This Capital Securities Guarantee shall be held by the Guarantee
Trustee for the benefit of the Holders of the Capital Securities, and the
Guarantee Trustee shall not transfer this Capital Securities Guarantee to any
Person except a Holder of Capital Securities exercising his or her rights
pursuant to Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Guarantee Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall (and the Guarantor acknowledges that the Guarantee Trustee shall)
enforce this Capital Securities Guarantee for the benefit of the Holders of the
Capital Securities.
(c) The Guarantee Trustee, before the occurrence of any Guarantee
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Capital Securities Guarantee, and no implied covenants shall be
read into this Capital Securities Guarantee against the Guarantee Trustee. In
case an Guarantee Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Guarantee Trustee, the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Capital Securities Guarantee, and use the
same degree of care and skill in its exercise thereof, as a
6
<PAGE>
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Capital Securities Guarantee shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Guarantee Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this Capital
Securities Guarantee, and the Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Capital Securities Guarantee, and no
implied covenants or obligations shall be read into this Capital
Securities Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Capital Securities
Guarantee; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Capital Securities Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
liquidation amount of the Capital Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Capital Securities Guarantee; and
(iv) no provision of this Capital Securities Guarantee shall
require the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Capital Securities Guarantee or indemnity, reasonably satisfactory to the
Guarantee Trustee, against such risk or liability is not reasonably assured
to it.
7
<PAGE>
Section 3.2. Certain Rights of Guarantee Trustee.
-----------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Capital Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Capital Securities
Guarantee, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or registration thereof).
(v) The Guarantee Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel with respect to legal
matters 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 accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Capital Securities
Guarantee from any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Capital
Securities Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee such security and
indemnity, reasonably satisfactory to the Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses and the expenses of
the Guarantee Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Guarantee
Trustee.
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee
8
<PAGE>
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(viii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, nominees, custodians or attorneys, and the Guarantee
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.
(ix) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of the Capital Securities, and the
signature of the Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action. No third party shall be required
to inquire as to the authority of the Guarantee Trustee to so act or as to
its compliance with any of the terms and provisions of this Capital
Securities Guarantee, both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Capital Securities
Guarantee the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Guarantee Trustee (i) may request instructions
from the Holders of a Majority in liquidation amount of the Capital
Securities, (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in accordance with such
instructions.
(xi) The Guarantee 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.
(xii) The Capital Securities Trustee shall not be liable for any
reasonably taken, suffered, or omitted to be taken by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Capital Securities Guarantee.
(b) No provision of this Capital Securities Guarantee shall be deemed
to impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty.
Section 3.3. Not Responsible for Recitals or Issuance of Capital
---------------------------------------------------
Securities Guarantee.
--------------------
9
<PAGE>
The recitals contained in this Capital Securities Guarantee shall be taken
as the statements of the Guarantor, and the Guarantee Trustee does not assume
any responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Capital Securities
Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility.
------------------------------
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or other Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred to
above, then, for the purposes of this Section 4.1(a)(ii), the combined
capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of Guarantee Trustee.
---------------------------------------------------------
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
10
<PAGE>
(c) The Guarantee Trustee appointed to office shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery of an instrument of resignation or removal, the Guarantee Trustee
resigning or being removed may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Capital Securities Guarantee or removal
or resignation of the Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Guarantee Trustee all amounts accrued and owing to
the Guarantee Trustee to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
Section 5.1. Guarantee.
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (except to the extent paid, and without
duplication of amounts paid, by the Issuer), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or assert.
The Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Capital Securities
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
11
<PAGE>
Section 5.3. Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor under
this Capital Securities Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following: (a) the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer of any express or implied agreement, covenant, term or
condition relating to the Capital Securities to be performed or observed by the
Issuer; (b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Capital Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Capital Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures permitted by the Indenture); (c) any failure, omission, delay or
lack of diligence on the part of the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders pursuant to the terms
of the Capital Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind; (d) the voluntary or involuntary
liquidation, dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Issuer or any of the assets of the Issuer; (e) any
invalidity of, or defect or deficiency in, the Capital Securities; (f) the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or (g) any other circumstance whatsoever that might otherwise constitute a legal
or equitable discharge or defense of a guarantor, it being the intent of this
Section 5.3 that the obligations of the Guarantor hereunder shall be absolute
and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 5.4. Rights of Holders.
-----------------
(a) The Holders of a Majority in liquidation amount of the Capital
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Capital Securities Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under this Capital Securities Guarantee.
(b) If the Guarantee Trustee fails to enforce such Capital Securities
Guarantee, any Holder of Capital Securities may institute a legal proceeding
directly against the Guarantor to enforce the Guarantee Trustee's rights under
this Capital Securities Guarantee, without first instituting a legal proceeding
against the Issuer, the Guarantee Trustee or any other person or entity. The
Guarantor waives any right or remedy to require that any action be brought first
against the Issuer or any other person or entity before proceeding directly
against the Guarantor. Notwithstanding the foregoing, if the Guarantor has
failed to make a Guarantee Payment, a
12
<PAGE>
Holder of Capital Securities may directly institute a proceeding against the
Guarantor for enforcement of this Capital Securities Guarantee for such payment.
Section 5.5. Guarantee of Payment.
--------------------
This Capital Securities Guarantee creates a guarantee of payment and not of
collection.
Section 5.6. Subrogation.
-----------
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Capital Securities against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Capital Securities Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Capital Securities
Guarantee, if, at the time of any such payment, any amounts are due and unpaid
under this Capital Securities Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
Section 5.7. Independent Obligations.
-----------------------
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Capital Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Capital Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. Limitation of Transactions.
--------------------------
So long as any Capital Securities remain outstanding, if there shall have
occurred and be continuing any Guarantee Event of Default or any Declaration
Event of Default, then (a) the Guarantor shall not declare or pay any dividend
on, or make any distributions with respect to, or redeem, purchase or acquire,
or make a liquidation payment with respect to, any of its capital stock (other
than (A) (i) purchases or acquisitions of shares of the Guarantor's capital
stock (or capital stock equivalents) in connection with the satisfaction by the
Guarantor of its obligations under any officers, directors or employee benefit
plans (or any options or other instruments issued thereunder), (ii) as a result
of a reclassification, combination or subdivision of the Guarantor's capital
stock or the exchange or conversion of one class or series of the Guarantor's
capital stock for another class or series of the Guarantor's capital stock,
(iii) dividends or distributions of shares of common stock of the Guarantor,
(iv) the purchase of fractional interests in shares of the Guarantor's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
any security being converted or exchanged into such capital stock or (v) any
13
<PAGE>
dividend or distribution of capital stock (or capital stock equivalents) in
connection with the implementation of a stockholders, rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, or (B) guarantee payments made
with respect to any of the foregoing), (b) the Guarantor shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Guarantor which rank pari passu with or
junior to the Debentures and (c) the Guarantor shall not make any guarantee
payments with respect to debt securities of any subsidiary of the Guarantor that
rank pari passu with or junior to the Debentures (other than pursuant to this
Capital Securities Guarantee or the Common Securities Guarantee Agreement).
Section 6.2. Ranking.
-------
This Capital Securities Guarantee will constitute an unsecured obligation
of the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor (including the Guarantor's Senior
Indebtedness) except any other liabilities that may be pari passu expressly by
their terms and (ii) senior to the Guarantor's capital stock.
ARTICLE VII
TERMINATION
Section 7.1. Termination.
-----------
This Capital Securities Guarantee shall terminate (i) upon full payment of
the redemption price of all Capital Securities, together with all accumulated
and unpaid Distributions thereon to but excluding the date of redemption, (ii)
upon the distribution of the Debentures to the Holders of all of the Capital
Securities or (iii) upon full payment of the amounts payable in accordance with
the Declaration upon liquidation of the Issuer. Notwithstanding the foregoing,
this Capital Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Capital Securities
must restore payment of any sums paid under the Capital Securities or under this
Capital Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance with
this Capital Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Capital Securities Guarantee or by law, except that
an Indemnified Person shall be liable for any such loss, damage, liability,
expense or claim
14
<PAGE>
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Capital Securities might properly be paid.
Section 8.2. Indemnification.
---------------
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The provisions of this Section 8.2 shall survive the termination of
this Capital Securities Guarantee or the resignation or removal of the
Guaranteed Trustee.
When the Guarantee Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 2.9(d) or (e) of the
Supplemental Indenture, the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Successors and Assigns.
----------------------
All guarantees and agreements contained in this Capital Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Capital Securities then outstanding. Except in connection with any
merger or consolidation of the Guarantor with or into another entity permitted
by Section 801 of the Base Indenture or any sale, transfer or lease of the
Guarantor's assets to another entity permitted by Section 801 of the Base
Indenture, the Guarantor may not assign its rights or delegate its obligations
under this Capital Securities Guarantee without the prior approval of the
holders of at least a Majority in liquidation amount of the Capital Securities
then outstanding. Upon any consolidation by the Guarantor with or merger of
the Guarantor into any other Person or any conveyance, transfer or lease of the
properties and assets of the Guarantor substantially as an entirety to any
Person in accordance with Section 801 of the Base Indenture,
15
<PAGE>
the successor Person formed by such consolidation or into which the Guarantor is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Guarantor
under this Capital Securities Guarantee with the same effect as if such
successor Person had been named as the Guarantor herein; and thereafter, except
in the case of a lease, the predecessor Person shall be released from all
obligations and covenants under this Capital Securities Guarantee.
Section 9.2. Amendments.
----------
Except with respect to any changes that do not materially adversely affect
the rights of Holders (in which case no vote or consent of Holders will be
required), this Capital Securities Guarantee may be amended only with the prior
approval of the Holders of at least a Majority in liquidation amount of all the
outstanding Capital Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Securities apply to the
giving of such approval. For purposes of this Capital Securities Guarantee,
any change which only eliminates or limits any of the dividends, distributions,
redemptions, purchases, acquisitions or liquidation payments which the Guarantor
is permitted to make pursuant to subclauses (A) or (B) of clause (a) of Section
6.1 shall be deemed not to materially adversely affect the rights of Holders.
Section 9.3. Notices.
-------
All notices provided for in this Capital Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee Trustee
may give notice of to the Holders of the Capital Securities):
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
Attn: Corporate Trust Department
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Capital Securities):
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Attn: Chief Financial Officer
(c) If given to any Holder of Capital Securities, at the address set
forth on the books and records of the Issuer.
16
<PAGE>
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 9.4. Benefit.
-------
This Capital Securities Guarantee is solely for the benefit of the Holders
of the Capital Securities and, subject to Section 3.1(a), is not separately
transferable from the Capital Securities.
17
<PAGE>
Section 9.5. Governing Law.
-------------
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
18
<PAGE>
THIS CAPITAL SECURITIES GUARANTEE is executed as of the day and year first
above written.
BAY VIEW CAPITAL CORPORATION,
as Guarantor
By: /s/ Robert J. Flax
--------------------------------------------
Name: Robert J. Flax
------------------------------------------
Title: Executive Vice President & Secretary
-----------------------------------------
WILMINGTON TRUST COMPANY,
as Guarantee Trustee
By: /s/ Donald G. Mackelcan
--------------------------------------------
Name: Donald G. Mackelcan
------------------------------------------
Title: Assistant Vice President
-----------------------------------------
19
<PAGE>
EXHIBIT 4.3
================================================================================
BAY VIEW CAPITAL CORPORATION,
Issuer
to
WILMINGTON TRUST COMPANY,
Trustee
_______________
INDENTURE
_______________
Dated as of December 21, 1998
Junior Subordinated Debt Securities
================================================================================
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
<S> <C>
(S)310(a)(1)............................................................................ 607
(a)(2)................................................................................ 607
(b)................................................................................... 608
(S)312(a)............................................................................... 701
(b)................................................................................... 702
(c)................................................................................... 702
(S)313(a)............................................................................... 703
(b)(2)................................................................................ 703
(c)................................................................................... 703
(d)................................................................................... 703
(S)314(a)............................................................................... 704
(c)(1)................................................................................ 102
(c)(2)................................................................................ 102
(e)................................................................................... 102
(f)................................................................................... 102
(S)316(a) (last sentence)............................................................... 101
(a)(1)(A)........................................................................ 502, 512
(a)(1)(B)............................................................................. 513
(b)................................................................................... 508
(S)317(a)(1)............................................................................ 503
(a)(2)................................................................................ 504
(b)................................................................................... 1003
(S)318(a)............................................................................... 108
- --------------------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS................................................................................ 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................... 1
Section 101. Definitions................................................................ 1
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........................................................... 17
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........................................................... 19
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
Section 308. Persons Deemed Owners...................................................... 32
Section 309. Cancellation............................................................... 32
Section 310. Computation of Interest.................................................... 32
ARTICLE FOUR SATISFACTION AND DISCHARGE OF INDENTURE................................... 33
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Section 401. Satisfaction and Discharge................................................. 33
Section 402. Defeasance and Covenant Defeasance......................................... 34
Section 403. Application of Trust Money................................................. 38
Section 404. Effect on Subordination Provisions......................................... 39
ARTICLE FIVE REMEDIES.................................................................. 39
Section 501. Events of Default.......................................................... 39
Section 502. Acceleration of Maturity; Rescission and Annulment......................... 41
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee............ 42
Section 504. Trustee May File Proofs of Claim........................................... 42
Section 505. Trustee May Enforce Claims without Possession of Securities or Coupons..... 43
Section 506. Application of Money Collected............................................. 43
Section 507. Limitations on Suits....................................................... 44
Section 509. Restoration of Rights and Remedies......................................... 45
Section 510. Rights and Remedies Cumulative............................................. 45
Section 511. Delay or Omission Not Waiver............................................... 45
Section 512. Control by Holders of Securities........................................... 46
Section 513. Waiver of Past Defaults.................................................... 46
Section 514. Waiver of Stay or Extension Laws........................................... 46
Section 515. Undertaking for Costs...................................................... 47
ARTICLE SIX THE TRUSTEE................................................................ 47
Section 601. Powers and Duties of the Trustee; Certain Rights of Trustee................ 47
Section 602. Notice of Defaults......................................................... 50
Section 603. Not Responsible for Recitals or Issuance of Securities..................... 51
Section 604. May Hold Securities........................................................ 51
Section 605. Money Held in Trust........................................................ 51
Section 606. Compensation and Reimbursement............................................. 51
Section 607. Corporate Trustee Required; Eligibility.................................... 52
Section 608. Resignation and Removal; Appointment of Successor.......................... 52
Section 609. Acceptance of Appointment by Successor..................................... 54
Section 610. Merger, Conversion, Consolidation or Succession to Business................ 55
Section 611. Appointment of Authenticating Agent........................................ 55
ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY......................... 57
Section 701. Company to Furnish Trustee Names and Addresses of Holders.................. 57
Section 702. Preservation of Information; Communications to Holders..................... 57
Section 703. Reports by Trustee......................................................... 58
Section 704. Reports by Company......................................................... 58
ARTICLE EIGHT CONSOLIDATION, MERGER AND SALES.......................................... 59
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Section 801. Company May Consolidate, Etc., Only on Certain Terms....................... 59
Section 802. Successor Person Substituted for Company................................... 59
ARTICLE NINE SUPPLEMENTAL INDENTURES................................................... 60
Section 901. Supplemental Indentures without Consent of Holders......................... 60
Section 902. Supplemental Indentures with Consent of Holders............................ 61
Section 903. Execution of Supplemental Indentures....................................... 62
Section 904. Effect of Supplemental Indentures.......................................... 62
Section 905. Reference in Securities to Supplemental Indentures......................... 63
Section 906. Effect on Senior Indebtedness.............................................. 63
Section 907. Conformity with Trust Indenture Act........................................ 63
ARTICLE TEN COVENANTS.................................................................. 63
Section 1001. Payment of Principal, Premium, Interest and Additional Amounts............ 63
Section 1002. Maintenance of Office or Agency........................................... 63
Section 1003. Money for Securities Payments to Be Held in Trust......................... 65
Section 1004. Additional Amounts........................................................ 66
Section 1005. Corporate Existence....................................................... 67
Section 1006. Company Statement as to Compliance........................................ 67
Section 1007. Waiver of Certain Covenants............................................... 68
ARTICLE ELEVEN REDEMPTION OF SECURITIES................................................ 68
Section 1101. Applicability of Article.................................................. 68
Section 1102. Election to Redeem; Notice to Trustee..................................... 68
Section 1103. Selection by Trustee of Securities to be Redeemed......................... 68
Section 1104. Notice of Redemption...................................................... 69
Section 1105. Deposit of Redemption Price............................................... 70
Section 1106. Securities Payable on Redemption Date..................................... 71
Section 1107. Securities Redeemed in Part............................................... 72
ARTICLE TWELVE SINKING FUNDS........................................................... 72
Section 1201. Applicability of Article.................................................. 72
Section 1202. Satisfaction of Sinking Fund Payments with Securities..................... 72
Section 1203. Redemption of Securities for Sinking Fund................................. 73
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS.................................... 73
Section 1301. Applicability of Article.................................................. 73
ARTICLE FOURTEEN SECURITIES IN FOREIGN CURRENCIES...................................... 74
Section 1401. Applicability of Article.................................................. 74
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES...................................... 74
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Section 1501. Purposes for Which Meetings May Be Called................................. 74
Section 1502. Call, Notice and Place of Meetings........................................ 74
Section 1503. Persons Entitled to Vote at Meetings...................................... 75
Section 1504. Quorum; Action............................................................ 75
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings....... 76
Section 1506. Counting Votes and Recording Action of Meetings........................... 77
ARTICLE SIXTEEN SUBORDINATION OF SECURITIES............................................ 77
Section 1601. Agreement to Subordinate.................................................. 77
Section 1603. No Payment on Securities in Event of Default on Senior Indebtedness....... 79
Section 1604. Payments on Securities Permitted.......................................... 80
Section 1605. Authorization of Holders to Trustee to Effect Subordination............... 80
Section 1606. Notices to Trustee........................................................ 80
Section 1607. Trustee as Holder of Senior Indebtedness.................................. 81
Section 1608. Modifications of Terms of Senior Indebtedness............................. 81
Section 1609. Reliance on Judicial Order or Certificate of Liquidating Agent............ 81
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INDENTURE, dated as of December 21, 1998 (the "Indenture"), between 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 WILMINGTON TRUST COMPANY, a banking corporation duly organized and
existing under the laws of the State of Delaware (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 junior
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:
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;
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(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.
"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.
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"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 permitted or required by applicable law to close or a
day on which the corporate trust office of the Property Trustee or the Delaware
Trustee is closed for business; 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; provided, however, that
warrants or other rights to purchase Common Stock shall not be deemed Common
Stock for the purpose of this definition.
"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.
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"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 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 1100 North Market Street, Wilmington, Delaware 19890-0001.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a Security by
Standard & Poor's Corporation, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of legal tender
for payment of public or private debts in the United States of America.
"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.
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"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such government.
"GAAP" means such accounting principles as are generally accepted in the
United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the other government or governments in the
confederation which issued the Foreign Currency in which the principal of or any
premium or interest on the relevant Security or any Additional Amounts in
respect thereof shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of such government or
governments or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America or such
other government or governments, in each case where the timely payment or
payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder", in the case of any Registered Security, means the Person in whose
name such Security is registered in the Security Register and, in the case of
any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security 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.
5
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"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) with respect to the Company, (A) Bay View
Bank and any successor to all or substantially all of the business or assets of
Bay View 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).
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes a Redemption Date
for such Security.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"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
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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 canceled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant
hereto (other than pursuant to Section 402) with the Trustee or
any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and
any Coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except
to the extent provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof satisfactory
to it that such Security is held by a bona fide purchaser in
whose hands such Security is a valid obligation of the Company;
and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities, if the terms of
such Security provide for such conversion or exchange pursuant to
Section 301;
7
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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 to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
8
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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 with direct responsibility for the administration of this Indenture
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 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 instrument , (2) evidenced by a bond, note,
debenture or similar instrument, (3) for obligations to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, (4) for the payment of money relating to a
capitalized lease
9
<PAGE>
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.
"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
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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
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Bearer Securities held by the Person so executing such instrument or writing and
the date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or 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 Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither 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 Delaware applicable to
agreements made or instruments entered into and, in each case, performed in said
State.
SECTION 114. LEGAL HOLIDAYS.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that specifically states
that such provision shall apply in lieu hereof) payment need not be made at such
Place of Payment on such date but such payment may be made on the next
succeeding day that is a Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or at the Stated
Maturity or Maturity, and no interest shall accrue on the amount payable on such
date or at such time for the period from and after such Interest Payment Date,
Stated Maturity or Maturity, as the case may be, to the next succeeding Business
Day.
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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, director or agent, 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.
,
------------------------------------
as Trustee
By:
---------------------------------
Authorized Signatory
SECTION 203. SECURITIES IN GLOBAL FORM.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in global form. If Securities
of a series shall be issuable in temporary or permanent global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any
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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;
(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
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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 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;
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(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;
(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
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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 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
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(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 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.
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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 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.
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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 canceled.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may execute
and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities are
issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be
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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 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,
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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 beneficial owners of interests in a global Security are
entitled to exchange such interests for
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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,
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destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen Coupon appertains with all appurtenant Coupons not
destroyed, lost or stolen, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case any
mutilated, destroyed, lost or stolen Security or Coupon has become or is about
to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or Coupon; provided, however, that payment of
principal of, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed 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
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Interest Payment Date therefor, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date and interest shall not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but shall be payable only to the
Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Person in whose name such Registered Security (or a Predecessor Security
thereof) shall be registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on such Registered Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this Clause
provided. Thereupon, the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to the Holder of such Registered Security
(or a Predecessor Security thereof) at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The Trustee
may, in its discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such Registered
Security (or a Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered Security after
the close of business at such Office or Agency on any Special Record Date and
before the opening of business at such Office or Agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Defaulted Interest and Defaulted
Interest shall not be payable on such proposed date of payment
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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 canceled 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 canceled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All canceled 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 Section 1106, and (iv) Securities and
Coupons of such series for whose payment money has theretofore
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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 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
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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)
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to pay and discharge, (y) the principal of (and premium, if any) and
interest, if any, on, such Outstanding Securities and any Coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest or the applicable Redemption Date, as
the case may be, and (z) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any Coupons
appertaining thereto on the day on which such payments are due and payable
in accordance with the terms of this Indenture and of such Securities and
any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any
Major Bank Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and
any Coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit, 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
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effect on the second Business Day prior to each payment date, or (y) with
respect to a Conversion Event, the applicable market exchange rate for such
Foreign Currency in effect (as nearly as feasible) at the time of the Conversion
Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4) of this Section 402 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section 402.
SECTION 403. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations deposited with the Trustee pursuant to Section 401 or
402 shall be held in trust and applied by it, in accordance with the provisions
of the Securities, the Coupons and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled 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
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respect to the Securities of such series as and when the same shall become due
and payable notwithstanding the provisions of Article Sixteen.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest on, or any Additional Amounts
payable in respect of any interest on, any Security of such series or any Coupon
appertaining thereto when such interest or such Additional Amounts, as the case
may be, become due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of any principal of or premium, if any, on, or
any Additional Amounts payable in respect of any principal of or premium, if
any, on, any Security of such series when due upon Maturity; or
(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
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Subsidiary a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Major Bank Subsidiary under any applicable Federal or
State law, or appointing a custodian, receiver, conservator, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or any
Major Bank Subsidiary or of any substantial part of the property of the Company
or any Major Bank Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company or any Major Bank Subsidiary, and the continuance of any
such decree or order for relief unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company or any Major Bank Subsidiary of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company or any Major Bank Subsidiary to the entry of a decree or order for
relief in respect of the Company or any Major Bank Subsidiary in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any Major Bank Subsidiary,
or the filing by the Company or any Major Bank Subsidiary of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company or any Major Bank Subsidiary to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, conservator, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Major Bank Subsidiary or any substantial
part of the property of the Company or any Major Bank Subsidiary, or the making
by the Company or any Major Bank Subsidiary of an assignment for the benefit of
creditors, or the 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 (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
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(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
(a) all overdue installments of any interest on any Securities of such
series and any Coupons appertaining thereto which have become due otherwise
then by such declaration of acceleration and any Additional Amounts with
respect thereto,
(b) the principal of and any premium on any Securities of such series
which have become due otherwise than by such declaration of acceleration
and any Additional Amounts with respect thereto and, to the extent
permitted by applicable law, interest thereon at the rate or rates borne by
or provided for in such Securities,
(c) to the extent permitted by applicable law, interest upon
installments of any interest, if any, which have become due otherwise then
by such declaration of acceleration and any Additional Amounts with respect
thereto at the rate or rates borne by or provided for in such Securities,
and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee under
Section 606; and
(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
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for in such Securities, and, in addition thereto, such further amount of money
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due to the Trustee under
Section 606.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
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
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to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders of Securities or
any Coupons, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit 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
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interest, if any, on or Additional Amounts, if any, with respect to any Security
on or after the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date, and, in the case of
repayment, on or after the date for repayment) or for the enforcement of the
right, if any, to convert or exchange any Security into Common Stock or other
securities in accordance with its terms.
ARTICLE SIX
THE TRUSTEE
SECTION 601. POWERS AND DUTIES OF THE TRUSTEE; CERTAIN RIGHTS OF TRUSTEE.
(a) If an Event of Default actually known to a Responsible Officer of the
Trustee has occurred and is continuing, the Trustee shall (and the Company
acknowledges that the Trustee shall) enforce this Indenture for the benefit of
the Holders of Outstanding Securities of any series and any Coupons appertaining
thereto.
(b) The Trustee, before the occurrence of any Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Indenture, and no
implied covenants shall be read into this Indenture against the Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 513) and is actually known to a Responsible Officer of the
Trustee, the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to
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examine the same to determine whether or not they conform to the
requirements of this Indenture;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority in aggregate principal
amount of the Outstanding Securities of any series of such series affected,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any
of its rights or powers, if the Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or indemnity, reasonably
satisfactory to the Trustee, against such risk or liability is not
reasonably assured to it.
(d) Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(i) the Trustee may conclusively rely, and shall be fully protected in
acting or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) any direction or act of the Company contemplated by this
Indenture 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;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established before 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 which, upon receipt of such request,
shall be promptly delivered by the Company;
(iv) the Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel with respect to legal matters 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
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accordance with such advice or opinion. Such counsel may be counsel to the
Company or any of its Affiliates and may include any of its employees. The
Trustee shall have the right at any time to seek instructions concerning the
administration of this Indenture from any court of competent jurisdiction;
(v) the Trustee shall have no duty to see to any recording, filing or
registration of any instrument (or any rerecording, refiling or registration
thereof);
(vi) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any Coupons appertaining
thereto pursuant to this Indenture, unless such Holders shall have provided to
the Trustee such security and indemnity, reasonably satisfactory to the Trustee,
against the reasonable costs, expenses (including reasonable attorneys' fees and
expenses and the expenses of the Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Trustee.
(vii) 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;
(viii) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
nominees, custodians 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;
(ix) any action taken by the Trustee or its agents hereunder shall
bind the Holders of Securities of any series or any Coupons appertaining thereto
pursuant to this Indenture, and the signature of the Trustee or its agents alone
shall be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Trustee to so act or as
to its compliance with any of the terms and provisions of this Indenture, both
of which shall be conclusively evidenced by the Trustee's or its agent's taking
such action;
(x) whenever in the administration of this Indenture the Trustee shall
deem it desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Trustee (i) may request
instructions from the Holders of Securities of any series or any Coupons
appertaining thereto pursuant to this Indenture, (ii) may refrain from enforcing
such remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on or acting in
accordance with such instructions;
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(xi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(xii) The Trustee shall not be liable for any reasonably taken,
suffered, or omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture unless it shall be proven that the Trustee was negligent in
ascertaining the pertinent facts.
(d) No provision of this Indenture shall be deemed to impose any duty or
obligation on the Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power
or authority available to the Trustee shall be construed to be a duty.
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.
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
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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 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.
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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.
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:
(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
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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 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
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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 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
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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 Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person 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 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
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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:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
----------------------------------------------
As Trustee
By:
-------------------------------------------
As Authenticating Agent
By:
-------------------------------------------
Authorized Signatory
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance
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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.
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
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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 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.
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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.
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.
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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 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
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(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,
(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,
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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.
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
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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.
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
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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
City of Wilmington, Delaware 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 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
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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, at the
place 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 as the Company's Office or Agency in 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.
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.
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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 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
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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 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.
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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.
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 30 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.
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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 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,
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(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,
(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.
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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 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
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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 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
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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
and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that
series purchased by the Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount
of Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
canceled. Notwithstanding anything to the contrary contained in this Section
1301, in connection with any repayment of Securities, the Company may arrange
for the purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1401. APPLICABILITY OF ARTICLE.
Whenever this Indenture provides for any distribution to Holders of
Securities of any series in which not all of such Securities are denominated in
the same Currency, in the absence of any provision to the contrary in or
pursuant to this Indenture or the Securities of such series, any amount in
respect of any Security denominated in a Currency other than Dollars shall be
treated for any such distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series (if any) for
such distribution (or, if there shall be no applicable record date, such other
date reasonably proximate to the date of such distribution) as the Company may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
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,
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direction, notice, consent, waiver or other Act provided by this Indenture to be
made, given or taken by Holders of Securities of such series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(1) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution)
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of or made
the first publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 106) or shall
not thereafter proceed to cause the meeting to be held as provided herein, then
the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (1) of
this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
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 a higher percentage
in principal amount of the Outstanding Securities of a series, the Persons
entitled to vote such higher percentage 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
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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 a higher percentage 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 such higher percentage 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
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or guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. If
the Securities of such series are issuable in minimum denominations of less than
$1,000, then a Holder of such a Security in a principal amount of less than
$1,000 shall be entitled to a fraction of one vote which is equal to the
fraction that the principal amount of such Security bears to $1,000. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at 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
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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 marshaling 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,
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after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or the
Holders of the Securities before all Senior Indebtedness is paid in full or
such payment is duly provided for, such payment or distribution shall be
paid over, upon written notice to the Trustee, to the holders of such
Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably as
aforesaid, for application to payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in full or
such payment duly provided for, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness (or such payment
having been duly provided for), the Holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to Senior Indebtedness until the principal of (and premium, if any)
and interest, if any, on, and Additional Amounts, if any, in respect of the
Securities shall be paid in full and no such payments or distributions to the
Holders of the Securities of cash, property or securities otherwise
distributable to the holders of Senior Indebtedness shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities be deemed to be a payment by the Company to or on
account of the Securities. It is understood that the provisions of this Article
Sixteen are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand. Nothing contained in this Article
Sixteen or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Securities, the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest, if any, on, and
Additional Amounts, if any, in respect of the Securities as and when the same
shall become due and payable in accordance with their terms, or to affect the
relative rights of the Holders of the Securities and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or in
the Securities prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Sixteen of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such 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.
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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.
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.
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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 a
Responsible Officer of 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) a Responsible Officer of
the Trustee shall not have received with respect to such moneys the notice
provided for in this Section 1606, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date. The Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to participate in any
payment or distribution pursuant to this Article Sixteen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person (or the
amount of Senior Indebtedness as to which such Person is trustee), the extent to
which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article
Sixteen and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 1607. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Sixteen in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior Indebtedness
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.
Nothing in this Article Sixteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
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SECTION 1608. MODIFICATIONS OF TERMS OF SENIOR INDEBTEDNESS.
Any renewal or extension of the time of payment of any Senior Indebtedness
or the exercise by the holders of Senior Indebtedness of any of their rights
under any instrument creating or evidencing Senior Indebtedness, including,
without limitation, the waiver of default thereunder, may be made or done all
without notice to or assent from the Holders of the Securities or the Trustee.
To the extent permitted by applicable law, no compromise, alteration,
amendment, modification, extension, renewal or other change of, or waiver,
consent or other action in respect of, any liability or obligation under or in
respect of any Senior Indebtedness, or any of the terms, covenants or conditions
of any indenture or other instrument under which any Senior Indebtedness is
outstanding, shall in any way alter or affect any of the provisions of this
Article Sixteen or of the Securities relating to the subordination thereof.
SECTION 1609. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article Sixteen, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Sixteen.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION
By: /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
Wilmington Trust Company,
------------------------------------
as Trustee
By: /s/ Donald G. Mackelcan
---------------------------------
Name: Donald G. Mackelcan
Title: Assistant Vice President
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EXHIBIT 4.4
================================================================================
BAY VIEW CAPITAL CORPORATION
TO
WILMINGTON TRUST COMPANY
TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 21, 1998
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
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ARTICLE I DEFINITIONS............................................................ 2
Section 1.1. Definition of Terms................................................. 2
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES........................ 5
Section 2.1. Designation and Principal Amount.................................... 5
Section 2.2. Maturity............................................................ 6
Section 2.3. Form and Payment.................................................... 6
Section 2.4. Global Debenture.................................................... 7
Section 2.5. Interest............................................................ 7
Section 2.6. Enforcement Rights.................................................. 8
Section 2.7. Other Terms of Debentures........................................... 9
Section 2.8. Limitation on Amendments............................................ 10
Section 2.9. Events of Default................................................... 10
Section 2.10. Acceleration of Maturity; Recission and Annulment................... 11
ARTICLE III REDEMPTION OF THE DEBENTURES......................................... 11
Section 3.1. Special Event Redemption............................................ 11
Section 3.2. Optional Redemption by Company...................................... 11
Section 3.3. Certain Limitations on Redemption................................... 12
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD.................................. 12
Section 4.1. Extension of Interest Payment Period................................ 12
Section 4.2. Notice of Extension................................................. 13
Section 4.3. Limitation of Transactions.......................................... 13
ARTICLE V EXPENSES............................................................... 14
Section 5.1. Payment of Expenses................................................. 14
Section 5.2. Payment Upon Resignation or Removal................................. 15
ARTICLE VI COVENANT TO LIST ON EXCHANGE.......................................... 15
Section 6.1. Listing on an Exchange.............................................. 15
ARTICLE VII SUBORDINATION........................................................ 16
Section 7.1. Senior Indebtedness................................................. 16
ARTICLE VIII FORM OF DEBENTURE................................................... 16
</TABLE>
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TABLE OF CONTENTS (cont'd)
<TABLE>
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Page
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<S> <C>
Section 8.1. Form of Debenture.................................................... 16
ARTICLE IX ORIGINAL ISSUE OF DEBENTURES.......................................... 16
Section 9.1. Original Issue of Debentures......................................... 16
ARTICLE X MISCELLANEOUS.......................................................... 16
Section 10.1. Ratification of Indenture; First Supplemental Indenture Controls.... 16
Section 10.2. Trustee Not Responsible for Recitals................................ 17
Section 10.3. Governing Law....................................................... 17
Section 10.4. Separability........................................................ 17
Section 10.5. Counterparts........................................................ 17
</TABLE>
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FIRST SUPPLEMENTAL INDENTURE, dated as of December 21, 1998 (the "First
Supplemental Indenture"), between Bay View Capital Corporation, a Delaware
corporation (the "Company"), and Wilmington Trust Company, as trustee (the
"Trustee") under the Indenture dated as of December 21, 1998 between the Company
and the Trustee (the "Base Indenture").
WHEREAS, the Company executed and delivered the Base Indenture to the
Trustee to provide for the future issuance of the Company's junior subordinated
unsecured debentures to be issued from time to time in one or more series as
might be determined by the Company under the Base Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered as provided
in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its 9.76% Junior Subordinated Deferrable Interest Debentures due December 31,
2028 (the "Debentures"), the form and terms thereof to be as provided in the
Base Indenture and this First Supplemental Indenture;
WHEREAS, Bay View Capital I, a Delaware statutory business trust (the
"Trust"), has offered to the public $80,000,000 aggregate liquidation amount
($92,000,000 if the Underwriters' over-allotment option is exercised in full) of
its 9.76% Cumulative Capital Securities (Liquidation Amount $25 per Capital
Security) (the "Capital Securities"), representing undivided beneficial
interests in the assets of the Trust and proposes to invest the proceeds from
such offering, together with the proceeds of the issuance and sale by the Trust
to the Company of $2,474,227 aggregate liquidation amount ($2,845,361 if the
Underwriters' over-allotment option is exercised in full) of its Common
Securities, in $82,474,227 aggregate principal amount of the Debentures
($94,845,361 if the Underwriters' over-allotment option is exercised in full);
and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this First Supplemental Indenture
has been duly authorized by the Company in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Base Indenture, the form and terms of the Debentures, the
Company covenants and agrees with the Trustee as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITION OF TERMS.
For all purposes of the First Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms which are defined in the Base Indenture (as defined
below) and not defined in this First Supplemental Indenture have the same
meanings when used in this First Supplemental Indenture;
(b) the terms defined in this Article have the meaning assigned to
them in this Article and include the plural as well as the singular;
(c) all other terms used herein which are defined in the Trust
Indenture Act, whether directly or by reference therein, have the meanings
assigned to them therein;
(d) 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 term
"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;
(e) a reference to a Section or Article is to a Section or Article of
this First Supplemental Indenture unless otherwise expressly stated;
(f) the words "herein," "hereof," "hereto" and "hereunder" and other
words of similar import refer to this First Supplemental Indenture as a whole
and not to any particular Article, Section or other subdivision;
(g) the word "or" is used inclusively (for example, the phrase "A or
B" means "A or B or both", not "either A or B but not both");
(h) the table of contents and headings are for convenience of
reference only and do not affect interpretation; and
(i) the following terms, as used in this First Supplemental Indenture,
have the meanings given to them in the Declaration:
(i) Business Day;
(ii) Capital Securities Guarantee;
(iii) Capital Security Certificate;
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(iv) Capital Treatment Event
(v) Clearing Agency;
(vi) Common Securities;
(vii) Common Securities Guarantee;
(viii) Delaware Trustee;
(vix) Depositary;
(x) Distribution:
(xi) DTC;
(xii) Investment Company Event;
(xiii) Property Trustee;
(xiv) Regular Trustee;
(xv) Special Event;
(xvi) Super-Majority;
(xvii) Tax Event; and
(xviii) Underwriting Agreement.
(j) the following terms, as used in this First Supplemental Indenture, have
the meanings set forth below:
"Additional Interest" shall have the meaning set forth in Section 2.5.(c).
"Base Indenture" means the Base Indenture referred to in the first
paragraph of this instrument, as the same may be amended or supplemented from
time to time in accordance with its terms, but excluding this First Supplemental
Indenture.
"Capital Securities" has the meaning specified in the recitals to this
First Supplemental Indenture.
"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 the Base Indenture, and thereafter "Company" shall mean
such successor Person, and any other obligor upon the Debentures.
"Compound Interest" shall have the meaning specified in Section 4.l.
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"Debentures" has the meaning specified in the recitals to this instrument.
"Debt" means with respect to any person, including the Company, whether
recourse is to all or a portion of the assets of such person and whether or not
contingent: (i) every obligation of such person for money borrowed; (ii) every
obligation of such person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses; (iii) every reimbursement obligation of such
person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such person; (iv) every obligation of such
person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of such person;
(vi) all indebtedness of such person whether incurred or on prior to the date of
the Indenture or thereafter incurred, for claims in respect of derivative
products, including interest rate, foreign exchange rate and commodity forward
contracts, options and swaps and similar arrangements; and (vii) every
obligation of the type referred to in clauses (i) through (vi) of another person
and all dividends of another person the payment of which, in either case, such
person has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise.
"Declaration" means the Amended and Restated Declaration of Trust of Bay
View Capital I, a Delaware statutory business trust, dated as of December 21,
1998, as the same may be amended or supplemented from time to time in accordance
with its terms.
"Deferred Interest" has the meaning specified in Section 4.1.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Declaration, and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Declaration.
"Event of Default" has the meaning set forth in Section 2.9.
"Extension Period" has the meaning specified in Section 4.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Final Maturity Date" has the meaning specified in Section 2.2.
"Global Debenture" has the meaning specified in Section 2.4.
"Indenture" means the Base Indenture, as amended and supplemented by this
First Supplemental Indenture.
"Redemption Price," with respect to any Debenture, is equal to 100% of the
principal amount thereof to be redeemed plus accrued and unpaid interest thereon
(including, to the extent permitted by law, Compound Interest) to but excluding
the date of redemption of such Debenture.
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"Regular Record Date," with respect to the Debentures, has the meaning set
forth in Section 2.5(a).
"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of the Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures or to other Debt which is pari
passu with, or subordinated to, the Debentures; provided, however, that Senior
Debt shall not be deemed to include: (i) any Debt of the Company which when
incurred and without respect to any election under Section 1111(b) of the United
States Bankruptcy Code of 1978, as amended, was without recourse to the Company,
(ii) any Debt of the Company to any of its subsidiaries, and (iii) any Debt to
any employee of the Company.
"Subordinated Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of the Indenture or thereafter
incurred, which is by its terms expressly provided to be junior and subordinate
to other Debt of the Company (other than the Debentures), except that
Subordinated Debt shall not include the Debentures. "Subordinated Debt"
includes the Company's outstanding 9 1/8% Subordinated Notes due 2007.
"Trust" means Bay View Capital I, a Delaware statutory business trust,
until a successor shall have become such pursuant to the applicable provisions
of the Declaration, and thereafter "Trust" shall mean such successor Trust.
"Trust Securities" means the Common Securities and the Capital Securities.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE
DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized a series of Securities designated the "9.76%
Junior Subordinated Deferrable Interest Debentures due December 31, 2028,"
limited (except as otherwise provided in paragraph (2) of Section 301 of the
Base Indenture) in aggregate principal amount to $82,474,227, plus such
additional principal amounts, not to exceed $94,845,361 in the aggregate, of
Debentures which may be issued from time to time in connection with the exercise
of the over-allotment option set forth in the Underwriting Agreement. The
Debentures shall be
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issued from time to time upon delivery to the Trustee of a Company Order
specifying the principal amount thereof to be so issued pursuant to Section 303
of the Indenture.
SECTION 2.2. MATURITY.
The Debentures will mature on December 31, 2028, provided, however, that
the Company may shorten such maturity to a date not earlier than December 31,
2003 (such maturity date, as adjusted, the "Final Maturity Date"). Any
shortening of the Final Maturity pursuant to this Section 2.2 shall not be
deemed to be a violation of Section 902 of the Base Indenture. Any shortening
of the Final Maturity Date shall be subject to the prior approval of the Federal
Reserve if the Company is a bank holding company and approval is required under
applicable regulations.
SECTION 2.3. FORM AND PAYMENT.
Except as provided in Section 2.4, the Debentures shall be issued in fully
registered certificated form without coupons in denominations of $25 in
principal amount and integral multiples thereof. The Office or Agency of the
Company in Wilmington, Delaware where Debentures may be presented or surrendered
for payment, surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Company in respect of the Debentures and the
Indenture may be served, shall initially be the Corporate Trust Office of the
Trustee; provided, however, at the option of the Company, interest on Debentures
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 appropriately
designated by the Person entitled thereto prior to the record date for the
corresponding payment date. Notwithstanding the foregoing, so long as the Holder
of any Debentures is the Property Trustee, the payment of the principal of and
interest (including, to the extent permitted by law, Compound Interest and
Additional Interest, if any) on, the Debentures held by the Property Trustee
will be made at such place and to such account in the United States of America
as may be designated by the Property Trustee.
The certificates evidencing the Debentures shall be in substantially the
form set forth in Exhibit A hereto, with such changes therein as may be approved
by any officer of the Company executing (by manual or facsimile signature) such
certificates, such approval to be conclusively evidenced by the execution
thereof.
The Debentures shall initially be issuable in definitive certificated form
but, as described in Section 2.4 below, may be exchanged for Global Debentures.
If Global Debentures are issued, the initial Depositary shall be DTC or such
successor Clearing Agency as may be selected by any officer of the Company.
Beneficial owners of interests in any Global Debenture may exchange such
interests for Debentures in definitive certificated form only as specified in
Section 305 of the Base Indenture.
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SECTION 2.4. GLOBAL DEBENTURE.
(i) If distributed to holders of Capital Securities in connection
with a Dissolution Event, the Debentures will be issued in the form of one
or more global Debentures registered in the name of the Depositary or its
nominee.
(ii) Upon the occurrence of a Dissolution Event, the Debentures
in certificated form shall be presented to the Trustee by the Property
Trustee in exchange for a global Debenture in an aggregate principal amount
equal to the aggregate principal amount of all outstanding Debentures (a
"Global Debenture"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Trustee to the Depositary (or its custodian)
for crediting to the accounts of its participants pursuant to the
instructions of the Regular Trustees. The Company upon any such
presentation shall execute a Global Debenture in such aggregate principal
amount and deliver the same to the Trustee for authentication and delivery
in accordance with the Indenture. Payments on the Debentures issued as a
Global Debenture will be made to the Depositary or its nominee.
(iii) Except under the limited circumstances described in the
next paragraph, Debentures represented by the Global Debenture will not be
exchangeable for, and will not otherwise be issuable as, Debentures in
definitive form.
(iv) In the event that (i) DTC notifies the Company that it is
unwilling or unable to continue as a Depositary for the Global Debentures
or if at any time DTC ceases to be a clearing agency registered as such
under the Securities Exchange Act of 1934, as amended, and the Company does
not appoint a successor Depositary within 90 days of such notification or
of the Company becoming aware of DTC'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
Debenture shall be so exchangeable or (iii) an Event of Default has
occurred and is continuing with respect to the Debentures, the Company
shall prepare and deliver certificates for the Debentures in exchange for
beneficial interests in the Global Debenture. Any Global Debenture that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Debentures registered in such names as the Depositary shall direct.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary or to the Depositary by its nominee,
or to a successor Depositary selected or approved by the Company or to a nominee
of such successor Depositary.
SECTION 2.5. INTEREST.
(a) Each Debenture will bear interest on the unpaid principal amount
thereof at the rate of 9.76% per annum (the "Coupon Rate") from December 21,
1998, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, payable quarterly (subject to deferral as set forth
in Article IV hereof) in arrears on March 31, June 30, September 30 and December
31 (each, an "Interest Payment Date") of each year, commencing
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March 31, 1999, until the principal thereof becomes due and payable, and will
bear interest on any overdue principal thereof and, to the extent permitted by
applicable law, on any overdue installment of interest thereon at the Coupon
Rate compounded quarterly. The interest so payable on any Interest Payment Date
shall be paid to the Person in whose name such Debenture or any Predecessor
Security is registered, subject to certain exceptions, at the close of business
on the Regular Record Date (as defined) next preceding such Interest Payment
Date. The Regular Record Date means (x) in respect of (i) Debentures of which
the Property Trustee is the Holder at any time the related Capital Securities
are in book-entry only form or (ii) a Global Debenture, the close of business on
the Business Day next preceding an Interest Payment Date or (y) if (i) the
Debentures are held by the Property Trustee and the Capital Securities are no
longer in book-entry only form or (ii) any Debentures are not represented by a
Global Debenture, any date selected by the Company for such interest
installment, which shall be a date at least one Business Day before an Interest
Payment Date (provided that such Regular Record Dates conform to the rules of
any securities exchange on which the Capital Securities or the Debentures, as
the case may be, are listed).
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months and, for any period of less
than a full calendar month, the actual number of days elapsed in such 30-day
month. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, then such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date.
(c) If at any time while the Property Trustee is the sole holder of
any Debentures, the Trust shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes that are properly withheld) imposed by the United States, or any other
taxing authority, then, in any such case, the Company will pay as additional
interest ("Additional Interest") on the Debentures held by the Property Trustee,
to the extent permitted by applicable law, such additional amounts as shall be
required so that the net amounts received and retained by the Trust and the
Property Trustee after paying such taxes, duties, assessments or other
governmental charges will not be less than the amounts the Trust would have
received had no such taxes, duties, assessments or other governmental charges
been imposed.
SECTION 2.6. ENFORCEMENT RIGHTS.
Subject to the requirements set forth in Section 5(b) of Annex I to the
Declaration as of the date hereof, the holders of Capital Securities shall have
the voting rights set forth in Section 5(b) of such Annex I, and, subject to the
requirements set forth in Section 6(c) of such Annex I, the holders of Common
Securities shall have the voting rights set forth in Section 6(c) of such Annex
I, which provisions are incorporated by reference in and made a part of this
First
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Supplemental Indenture as if set forth in full herein. If the Property Trustee
fails to enforce its rights under the Debentures, a holder of Capital
Securities, to the fullest extent permitted by law, may institute a legal
proceeding directly against the Company to enforce the Property Trustee's rights
under the Debentures without first instituting any legal proceeding against the
Property Trustee or any other Person. Notwithstanding the foregoing, if a
Declaration Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay principal of or interest on
the Debentures on the date such principal or interest is otherwise payable (or
in the case of redemption, on the Redemption Date), then the registered holder
of the Capital Securities may (and the Company hereby acknowledges that a
registered holder of Capital Securities may) directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Capital Securities of such holder (a "Direct Action") on or after the
respective due date specified in or pursuant to the Debentures or the Indenture.
Notwithstanding any payments made to such holder of Capital Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of and interest on such Debentures, and the Company shall
be subrogated to the rights of such holder of Capital Securities under the
Declaration to the extent of any payment made by the Company to such holder of
Capital Securities in such Direct Action. Except as provided in this Section
2.6, the holders of Capital Securities will not be able to exercise any other
remedy available to the holders of the Debentures.
SECTION 2.7. OTHER TERMS OF DEBENTURES.
(a) No Additional Amounts shall be payable on or with respect to the
Debentures.
(b) The City of Wilmington, Delaware, shall be a Place of Payment for
the Debentures, and the Corporate Trust Office of the Trustee is hereby
designated as the initial Office or Agency in the City of New York with respect
to the Debentures, and the Trustee shall be the initial Security Registrar and
Paying Agent with respect to the Debentures.
(c) The Company shall not be obligated to redeem or purchase any of
the Debentures pursuant to any sinking fund or analogous provision (other than
pursuant to an optional redemption exercised by the Company) or at the option of
any Holder thereof.
(d) The Debentures shall not be subject to defeasance or covenant
defeasance under Section 402(2) or Section 402(3), respectively, of the Base
Indenture.
(e) For purposes of Section 901(6) of the Base Indenture, but solely
insofar as it relates to the Debentures, any supplemental indenture which only
eliminates or limits any of the dividends, distributions redemptions, purchases,
acquisitions or liquidation payments which the Company is permitted to make
pursuant to subclauses (A) or (B) of clause (a) of section 4.3 of this First
Supplemental Indenture shall be deemed not to adversely affect the interests of
the Holders of the Securities of any series then Outstanding in any material
respect, and any such supplemental indenture may be entered into without the
consent of any Holders of any Securities.
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(f) The Debentures shall not be convertible into any other securities.
SECTION 2.8. LIMITATION ON AMENDMENTS.
In the event the consent of the Property Trustee, as the holder of the
Debentures, is required under this Indenture with respect to any amendment,
modification or termination of this Indenture, no such amendment, modification
or termination shall be effective unless the Property Trustee shall have
requested the direction of the holders of the Trust Securities with respect to
and shall have voted with respect to such amendment, modification or termination
as directed by a majority in liquidation amount of the Trust Securities voting
together as a single class; provided, however, that where a consent under this
Indenture would require the consent of a Super-Majority, the Property Trustee
may only give such consent at the direction of the holders of at least the
proportion in liquidation amount of the Trust Securities which the relevant
Super-Majority represents of the aggregate principal amount of the Debentures
outstanding.
SECTION 2.9. EVENTS OF DEFAULT.
For the purposes of this First Supplemental Indenture, the definition of
"Event of Default" set forth in the Base Indenture shall be deemed to be amended
and restated in its entirety. "Event of Default" means:
(a) default in the payment of any interest on any Debentures,
including any Additional Interest and Compound Interest, if any, in respect
thereof, when such interest or such Additional Interest and Compound Interest,
as the case may be, become due and payable, and continuance of such default for
a period of 30 days (provided that a valid extension of an interest payment
period will not constitute a default in the payment of interest (including any
Additional Interest and Compound Interest, if any)); or
(b) default in the payment of any principal of any Debentures when due
upon Maturity; or
(c) A failure to observe or perform in any material respect any
covenant or warranty contained in this Indenture (other than the covenants
described in clause (a) or (b) above and other than a covenant or warranty
contained in the Base Indenture for the benefit of a series of Securities other
than the Debentures) which default shall not have been remedied for a period of
90 days after written notice to the Company by the Debt Trustee or the holders
of not less than 25% in aggregate principal amount of the Debentures then
outstanding; or
(d) the entry by a court of (A) a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian, receiver, conservator,
liquidator, assignee,
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trustee, sequestrator or other similar official of the Company or of any
substantial part of the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company, and the continuance of any such
decree or order for relief unstayed and in effect for a period of 60 consecutive
days; or
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company to the entry of a decree or
order for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company, or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company 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 substantial part of the property of the Company, or the making by the
Company of an assignment for the benefit of creditors, or the taking of
corporate action by the Company in furtherance of any such action.
SECTION 2.10. ACCELERATION OF MATURITY; RECISSION AND ANNULMENT.
Solely for purposes of the Debentures and this First Supplemental
Indenture, the first paragraph of Section 502 of the Base Indenture shall be
deemed to have been amended and restated to read in full as follows: "If an
Event of Default as described in Section 2.9(d) or (e) of the First Supplemental
Indenture occurs and is continuing, then either the Trustee or the Holders of
not less than 25% in principal amount of the Debentures may declare the
principal of all the Debentures, 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 and such accrued and unpaid interest shall become immediately due and
payable."
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. SPECIAL EVENT REDEMPTION.
The Company has the right to redeem the Debentures at the Redemption
Price at any time in whole, but not in part, within 90 days following the
occurrence of a Special Event.
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SECTION 3.2. OPTIONAL REDEMPTION BY COMPANY.
(a) Except as provided in Section 3.1, the Debentures shall not be
subject to redemption at the option of the Company prior to December 31, 2003.
(b) Subject to the provisions of Article Eleven of the Base Indenture,
the Company shall have the right to redeem the Debentures, in whole or in part,
from time to time, on or after December 31, 2003, upon not less than 30 nor more
than 60 days notice to the Holders of the Debentures, at the Redemption Price.
Without limitation to the second proviso to the first paragraph of Section
1106 of the Base Indenture, if Debentures are redeemed on any March 31, June 30,
September 30 or December 31, accrued and unpaid interest which is due and
payable on such Interest Payment Date shall be payable to the Holders of record
at the close of business on the relevant Regular Record Date.
So long as the Trust Securities are outstanding, the proceeds from the
redemption of the Debentures will be used to redeem Trust Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so redeemed.
SECTION 3.3. CERTAIN LIMITATIONS ON REDEMPTION.
(a) The Company may not redeem any Debentures unless all accrued and unpaid
interest thereon (including, to the extent permitted by law, Compound Interest)
has been or is contemporaneously paid (or duly provided for) for all quarterly
interest payment periods terminating on or prior to the date of notice of
redemption.
(b) If a partial redemption of the Debentures would result in the delisting
of the Capital Securities from any national securities exchange or national
quotation system on which the Capital Securities are then listed, the Company
may only redeem the Debentures in whole.
(c) Any redemption of the Debentures by the Company prior to the Final
Maturity Date is subject to the prior approval of the Federal Reserve if the
Company is then a bank holding company and approval is required under applicable
regulations.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD.
So long as no Event of Default with respect to the Debentures under Section
2.9 of this First Supplemental Indenture shall have occurred and be continuing,
the Company shall have the right at any time and from time to time, during the
term of the Debentures, to defer payments of
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interest for successive periods not exceeding 20 consecutive quarters for any
such period (each, an "Extension Period"), during which Extension Period no
interest shall be due and payable; provided that no Extension Period may extend
beyond the maturity of the Debentures or end on other than an Interest Payment
Date. To the extent permitted by applicable law, interest, the payment of which
has been deferred because of the extension of the interest payment period
pursuant to this Section 4.1, will bear interest thereon at the Coupon Rate
compounded quarterly for each quarter of the Extension Period ("Compound
Interest"). At the end of the Extension Period, the Company shall pay all
accrued and unpaid interest on the Debentures, including, to the extent
permitted by law, any Additional Interest and Compound Interest (together,
"Deferred Interest"), to the Holders of record of the Debentures as they appear
on the books and records of the Company at the close of business on the Regular
Record Date for the Interest Payment Date upon which such Extension Period
terminates; provided that any Additional Interest shall be payable to the Trust
rather than to such Holders. Before the termination of any Extension Period of
less than 20 consecutive quarters, the Company may further extend such period,
provided that such period together with all such previous and further extensions
thereof shall not exceed 20 consecutive quarters, or extend beyond the maturity
of the Debentures and end other than on an Interest Payment Date. Upon the
termination of any Extension Period and upon the payment of all Deferred
Interest then due, the Company may commence a new Extension Period, subject to
the foregoing requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof, but the Company may prepay at any
time all or any portion of the interest accrued during an Extension Period.
SECTION 4.2. NOTICE OF EXTENSION.
(a) If the Property Trustee is the sole Holder of the Debentures at
the time the Company selects an Extension Period, the Company shall give the
Regular Trustees and the Property Trustee notice of its selection of such
Extension Period one Business Day prior to the earlier of (i) the next
succeeding date Distributions on the Trust Securities are payable, or (ii) the
date the Regular Trustees are required to give notice to the Nasdaq National
Market (or other applicable securities exchange) or to the holders of the Trust
Securities of the record date or the date such Distribution is payable.
(b) If the Property Trustee is not the only Holder of the Debentures
at the time the Company selects an Extension Period, the Company shall give the
Holders of the Debentures and the Trustee written notice of its selection of
such Extension Period at least ten Business Days prior to the earlier of (i) the
next succeeding Interest Payment Date, or (ii) the date upon which the Company
is required to give notice to the Nasdaq National Market or other applicable
securities exchange or to Holders of the Debentures of the record or payment
date of such related interest payment.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extension Period permitted under Section 4.1.
13
<PAGE>
SECTION 4.3. LIMITATION OF TRANSACTIONS.
If the Company shall exercise its right to defer payment of interest as
provided in Section 4.1, then during the Extension Period (a) the Company shall
not declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (A)(i) purchases or acquisitions of shares of the
Company's capital stock (or capital stock equivalents) in connection with the
satisfaction by the Company of its obligations under any officers, directors or
employee benefit plans (or any options or other instruments issued thereunder),
(ii) as a result of a reclassification, combination or subdivision of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's capital
stock, (iii) dividends or distributions of shares of common stock of the
Company, (iv) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or any security being converted or exchanged, or (v) any dividend or
distribution of capital stock (or capital stock equivalents) in connection with
the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, or (B) guarantee payments made with respect to any of
the foregoing), (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company that rank pari passu with or junior to the
Debentures and (c) the Company shall not make any guarantee payments with
respect to the debt securities of any Company subsidiary that rank pari passu
with or junior to the Debentures (other than pursuant to the Common Securities
Guarantee or the Capital Securities Guarantee).
ARTICLE V
EXPENSES
SECTION 5.1. PAYMENT OF EXPENSES.
In connection with the offering, sale and issuance of the Debentures to the
Property Trustee and in connection with the sale of the Trust Securities by the
Trust, the Company, in its capacity as borrower with respect to the Debentures,
shall:
(a) pay all fees, costs and expenses relating to the offering, sale
and issuance of the Debentures and the Trust Securities, including compensation
to the underwriters payable pursuant to the Underwriting Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 606 of the Base Indenture;
(b) be responsible for and pay all (and the Trust shall not be
required to pay any) costs, fees, expenses, debts and obligations of the Trust
(other than with respect to the Trust Securities) including, but not limited to,
costs, fees and expenses relating to the organization, maintenance and
dissolution of the Trust, the fees and expenses of the Property Trustee and the
14
<PAGE>
Delaware Trustee, the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection wish the acquisition,
financing, and disposition of Trust assets;
(c) pay all (and the Trust shall not be obligated to pay any) costs,
fees and expenses related to the enforcement by the Property Trustee of the
rights of the holders of the Capital Securities;
(d) be primarily liable for any indemnification obligations arising
with respect to the Declaration; and
(e) pay any and all income taxes, duties and other governmental
charges and taxes (other than United States withholding taxes that are properly
withheld attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such income taxes, duties and other governmental
charges and taxes of the Trust.
SECTION 5.2. PAYMENT UPON RESIGNATION OR REMOVAL.
Upon termination of this First Supplemental Indenture or the Base Indenture
or the removal or resignation of the Trustee pursuant to Section 608 of the Base
Indenture, the Company shall pay to the Trustee all amounts owed to such Trustee
pursuant to Section 606 of the Base Indenture accrued to the date of such
termination, removal or resignation. Upon termination of the Declaration or the
removal or resignation of the Delaware Trustee or the Property Trustee, as the
case may be, pursuant to Section 5.7 of the Declaration, the Company shall pay
to the Delaware Trustee or the Property Trustee, as the case may be, all amounts
owed to the Delaware Trustee or the Property Trustee, as the case may be, for
their services as such pursuant to the Declaration accrued to the date of such
termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. LISTING ON AN EXCHANGE.
If the Debentures are to be distributed to the holders of the Capital
Securities issued by the Trust upon a Dissolution Event, the Company will use
its reasonable best efforts to list such Debentures on the Nasdaq National
Market or on such other national securities exchange or similar organization as
the Capital Securities are then listed.
15
<PAGE>
ARTICLE VII
SUBORDINATION
SECTION 7.1. SENIOR INDEBTEDNESS.
Solely for purposes of the Debentures and this First Supplemental
Indenture, the definition of the term Senior Indebtedness in Section 101 of the
Base Indenture shall be deemed to have been amended and restated to read in full
as follows: "Senior Indebtedness means Senior Debt and Subordinated Debt," and
the term "Senior Indebtedness" as used in the Base Indenture with respect to the
Debentures shall have the meaning set forth herein.
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. FORM OF DEBENTURE.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the form attached hereto as Exhibit
A. In addition, the Debentures shall have the further terms as are set forth in
the form of Debenture attached hereto as Exhibit A:
ARTICLE IX
ORIGINAL ISSUE OF DEBENTURES
SECTION 9.1. ORIGINAL ISSUE OF DEBENTURES.
Debentures may upon execution of this First Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery said
Debentures to or upon the written order of the Company, as provided in the
Indenture.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. RATIFICATION OF INDENTURE; FIRST SUPPLEMENTAL INDENTURE CONTROLS.
The Indenture, as supplemented by this First Supplemental Indenture, is in
all respects ratified and confirmed, and this First Supplemental Indenture shall
be deemed part of the
16
<PAGE>
Indenture in the manner and to the extent herein and therein provided. The
provisions of this First Supplemental Indenture shall, insofar as pertains to
the Debentures, supersede the provisions of the Indenture to the extent the
Indenture is inconsistent herewith.
SECTION 10.2. TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 10.3. GOVERNING LAW.
This First Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
or instruments entered into and, in each case, performed in said State.
SECTION 10.4. SEPARABILITY.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 10.5. COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
17
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION
By: /s/ Edward H. Sandker
--------------------------------------------
Name: Edward H. Sandker
Title: President and Chief Executive Officer
WILMINGTON TRUST COMPANY
By: /s/ Donald G. Mackelcan
--------------------------------------------
Name: Donald G. Mackelcan
Title: Assistant Vice President
18
<PAGE>
FORM OF DEBENTURE
[(FORM OF FACE OF DEBENTURE)]
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT THE FOLLOWING - -
This Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Debenture (other than a transfer of this Debenture as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or to a successor Depositary or
its nominee) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the Company or
its agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co., or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY ANY PERSON IS WRONGFUL since the registered owner hereof, Cede
Co., has an interest herein.]
No.___ $_________
CUSIP No. _____
Bay View Capital Corporation
__% Junior Subordinated Deferrable Interest Debenture due December 31, 2028
Bay View Capital Corporation, a Delaware corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to _____________________, or
registered assigns, the principal sum of ______________ _____ ($_______) on
December 31, 2028, unless shortened in accordance with Section 2.2 of the First
Supplemental Indenture (as defined) (the "Stated Maturity"), and to pay interest
on said principal sum from December 21, 1998, or from the most recent Interest
Payment Date (as defined below) to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth herein and in the Indenture
referred to herein) in arrears on March 31, June 30, September 30 and December
31 (each, an "Interest Payment Date") of each year commencing March 31, 1999, at
the rate of 9.76% per annum until the principal hereof shall have become due and
payable, and to pay interest on any overdue principal hereof and, to the extent
permitted by applicable law, on any overdue installment of interest hereon at
the same rate per annum compounded quarterly. The amount of interest payable
for any period will be computed on the basis of a 360-day year of twelve 30-day
months. Except as
<PAGE>
provided in the following sentence, the amount of interest payable for any
period shorter than a full calendar month will be computed on the basis of the
actual number of days elapsed in such 30-day month. In the event that any date
on which interest is payable on this Debenture is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
installment, which shall be the Business Day next preceding such Interest
Payment Date unless otherwise provided in or pursuant to the Indenture. Any such
interest installment 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 on the relevant Regular Record Date by virtue of having
been such Holder and may be paid to the Person in whose name this Debenture (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date to be fixed by the Trustee for the payment of such Defaulted
Interest, notice whereof shall be given to the registered Holders of the
Debentures 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 on which the Debentures may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of and the interest on this Debenture
shall be payable at the Office or Agency of the Company maintained for that
purpose in the coin or currency of the United States of America that at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto at such address as
shall appear in the Security Register or by transfer to an account maintained by
the payee with a bank located in the United States of America. Notwithstanding
the foregoing, so long as the Holder of this Debenture is the Property Trustee,
the payment of the principal of and interest on this Debenture will be made at
such place and to such account in the United States of America as may be
designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent and in the
manner provided in the Indenture, subordinate and junior in right of payment to
the prior payment in full of all Senior Indebtedness, and this Debenture is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
2
<PAGE>
This Debenture shall not be entitled to any benefit under the Indenture or
be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
under its corporate seal.
BAY VIEW CAPITAL CORPORATION
By:
-----------------------------------------
Name:
Title:
[SEAL]
Attest:
_____________________________________
Name:
Title:
3
<PAGE>
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:______________ WILMINGTON TRUST COMPANY, as Trustee
By:
-------------------------------------------
Authorized Signatory
4
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
9.76% Junior Subordinated Deferrable Interest Debentures due December 31, 2028
This Debenture is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Debentures" or the "Debentures"),
issued or to be issued in one or more series under and pursuant to an indenture
dated as of December 21, 1998, between the Company and Wilmington Trust Company,
a national banking association, as Trustee (the "Trustee", which term includes
any successor trustee under the Indenture with respect to the Debentures), as
amended and supplemented by the First Supplemental Indenture dated as of
December 21, 1998, between the Company and the Trustee (the indenture as so
amended and supplemented and as the same may be further amended or supplemented
from time to time in accordance with its terms, the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Debentures. By the terms of the Indenture, the Securities are issuable
thereunder in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This series of
Debentures is limited in aggregate principal amount as specified in said First
Supplemental Indenture.
The Company has the right to redeem the Debentures (i) in whole or in part,
from time to time, on or after December 31, 2003 or (ii) at any time in whole,
but not in part, within 90 days following the occurrence of a Special Event, in
each case at a Redemption Price equal to 100% of the principal amount thereof to
be redeemed plus accrued and unpaid interest thereon (including, to the extent
permitted by law, Compound Interest) to but excluding the date of such
redemption, on the terms, and subject to the conditions, set forth in the
Indenture. Notwithstanding the foregoing, installments of interest whose Stated
Maturity is on or prior to a Redemption Date shall be payable to the Holders of
such Debentures (or one or more Predecessor Securities) registered as such at
the close of business on the Regular Record Date therefor according to their
terms and the other provisions to the Indenture.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default with respect to the Debentures shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series affected, to
execute supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of such series, subject to certain limitations set
forth in the
5
<PAGE>
Indenture. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series, on behalf of all of the Holders of the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults thereunder. Any such waiver (or consent) by the registered
Holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and of any Debenture issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Debenture at the time and place and at the rate and in the money herein
prescribed.
Upon the terms and subject to the conditions set forth in the Indenture,
the Company shall have the right at any time during the term of the Debentures
and from time to time to defer payments of interest by extending the interest
payment period of such Debentures for one or more periods (each, an "Extension
Period"), so long as no Extension Period shall exceed 20 consecutive quarters,
extend beyond the maturity date of the Debentures or end on other than an
Interest Payment Date, during which Extension Period no interest shall be due
and payable on the Debentures and at the end of which period the Company shall
pay all interest then accrued and unpaid thereon, together with, to the extent
permitted by law, Additional Interest, if any, and Compound Interest thereon.
Before the termination of any such Extension Period, the Company may further
extend such Extension Period, provided that such Extension Period together with
all such previous and further extensions thereof shall not exceed 20 consecutive
quarters or extend beyond the maturity of the Debentures or end other than on an
Interest Payment Date. If interest payments are deferred as aforesaid, the
deferred accrued interest and, to the extent permitted by applicable law,
Additional Interest, if any, and Compound Interest thereon shall be payable to
Holders of the Debentures as they appear on the books and records of the Company
at the close of business on the Regular Record Date for the Interest Payment
Date upon which such Extension Period terminates. At the termination of any
such Extension Period and upon the payment of all accrued and unpaid interest
and, to the extent permitted by law, Additional Interest, if any, and Compound
Interest thereon then due, the Company may commence a new Extension Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the Holder hereof on the Security
Register of the Company, upon surrender of this Debenture for registration of
transfer at the Office or Agency maintained for such purpose in the City and
State of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company or the Trustee may require payment of a sum sufficient to cover
6
<PAGE>
any tax or other governmental charge and any other expenses (including fees and
expenses of the Trustee) that may be imposed in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee and any Paying Agent and Security Registrar may deem
and treat the Holder hereof as the absolute owner hereof (whether or not this
Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any Paying Agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or interest on
this Debenture, or for any claim based hereon, or otherwise in respect hereof,
or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Debentures of this series are issuable only in registered form without
Coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Debentures of this series are exchangeable for a like aggregate principal amount
of Debentures of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
This Debenture is unsecured by any collateral, including the assets of the
Company, or any of its subsidiaries or affiliates.
All terms used in this Debenture that are defined in the Indenture and not
defined herein shall have the meanings assigned to them in the Indenture.
THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE OR INSTRUMENTS
ENTERED INTO AND, IN EACH CASE, PERFORMED IN SAID STATE WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES.
7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Debenture
to:
- -----------------------------------
- -----------------------------------
- -----------------------------------
(Insert assignee's social security or tax identification number)
- -----------------------------------
- -----------------------------------
- -----------------------------------
(Insert address and zip code of assignee)
- -----------------------------------
- -----------------------------------
- -----------------------------------
and irrevocably appoints __________________________________________________
_____________________________________________________ agent to transfer this
Debenture on the books of the Trust. The agent may substitute another to act
for him or her.
Date: _____________________ Signature: __________________ (Sign exactly as
your name appears on the face of this Debenture)
Signature Guarantee*:
*Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Trustee which requirements include membership of
participation in the Securities Transfer Agents Medallion. Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Trustee in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
8
<PAGE>
EXHIBIT 99
NASDAQ SYMBOL: BVCC
Web Site: www.bayviewcapital.com
Contacts: David A. Heaberlin
(650) 312-7272
FOR IMMEDIATE RELEASE
December 21, 1998
BAY VIEW CAPITAL ANNOUNCES $90 MILLION
CAPITAL SECURITIES ISSUANCE
Bay View Capital Corporation (the "Company") today announced the issuance of
$90 million of 9.76% Cumulative Capital Securities (the "Trust Preferred
Securities" or the "Securities") of Bay View Capital I (the "Trust") with a
liquidation value of $25 per share. The Securities, which were sold in a public
underwritten offering, will pay quarterly cumulative cash distributions. The
Securities began trading today on the Nasdaq National Market under the trading
symbol "BVCCP."
The lead manager for the transaction was Dain Rauscher Wessels, a division of
Dain Rauscher Incorporated. Co-managers were EVEREN Securities, Inc., Piper
Jaffray Inc. and Sutro & Co. Incorporated.
David A. Heaberlin, the Company's Executive Vice President and Chief Financial
Officer commented, "This transaction essentially represents a pre-funding of our
$50 million of Senior Notes which mature in June 1999. The Company expects the
Securities to have the added benefit of largely qualifying as Tier 1 capital for
regulatory reporting purposes if the Company becomes a bank holding company.
While the Company is committed to maintaining Bay View Bank at "well-
capitalized" status as defined by bank regulatory requirements, this transaction
will also significantly augment Bay View Capital Corporation's capital levels in
accordance with bank holding company regulatory requirements as demonstrated in
the following table. The Company expects to aggressively pursue alternatives to
mitigate the earnings dilution associated with this issuance, currently
estimated at approximately 3 cents per diluted share for the first and second
quarters of 1999 and 2 cents per diluted share for the third and fourth quarters
of 1999."
<PAGE>
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------
Bay View Bank Capital Ratios
-------------------------------------------------------------------------------------------------
Actual As Adjusted Well- Excess Capital
September 30, For Capitalized As Adjusted
1998 Offering Requirement For Offering
---------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Leverage 6.41% 6.41% 5.00% 1.41%
Tier 1 risk-based 9.29% 9.29% 6.00% 3.29%
Total risk-based 10.50% 10.50% 10.00% 0.50%
<CAPTION>
-------------------------------------------------------------------------------------------------
Bay View Capital Corporation Capital Ratios
-------------------------------------------------------------------------------------------------
Actual As Adjusted Well- Excess Capital
September 30, For Capitalized As Adjusted
1998 Offering Requirement For Offering
---------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Leverage 4.03% 5.32% 4.00% 1.32%
Tier 1 risk-based 5.94% 7.92% 6.00% 1.92%
Total risk-based 9.82% 11.92% 10.00% 1.92%
</TABLE>
The Securities represent undivided beneficial interests in the Trust, which
was established by the Company for the purpose of issuing the Securities.
Proceeds of the offering will be invested by the Trust in junior subordinated
debentures issued by the Company. The Company will use $50 million of the
proceeds to repay its 8.42% Senior Notes upon their maturity in June 1999 and
the balance for general corporate purposes. A copy of the prospectus may be
obtained by contacting Dain Rauscher Wessels, Attn: Preferred Stock Desk, 60
South Sixth Street, Minneapolis, MN 55402.
Bay View Capital Corporation is a diversified financial services holding
company headquartered in San Mateo, California. Its business activities are
concentrated in three principal areas: Bay View Bank, its Banking Platform; Bay
View Acceptance Corporation, its Consumer Finance Platform; and Bay View
Commercial Finance Group, its Commercial Finance Platform.
FORWARD-LOOKING STATEMENTS
Certain statements included in this press release, in filings by the
Company with the Securities and Exchange Commission, in other press releases or
shareholder communications or in oral statements made with the approval of an
authorized executive officer, constitute "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933, as amended (the
"Securities Act"), and Section 21E of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and are subject to a number of risks and
uncertainties. Any such forward-looking statements should not be relied upon as
predictions of future events. Certain such forward-looking statements can be
identified by the use of forward-looking terminology such as "believes,"
"expects," "may," "are expected to," "will," "will allow," "will continue,"
"will likely result," "should," "would be," "seeks," "approximately," "intends,"
"plans," "projects," "estimates" or "anticipates" or similar expressions or the
negative thereof or other variations thereof or comparable terminology, or by
discussions of strategy, plans or
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intentions. In addition, all information included herein or therein with respect
to projected or future results of operations, financial condition, financial
performance or other financial or statistical matters constitute such forward-
looking statements. Such forward-looking statements are necessarily dependent on
assumptions, data or methods that may be incorrect or imprecise and that may be
incapable of being realized and in some instances are based on consensus
estimates of analysts not affiliated with the Company. In that regard, the
following factors, among others, could cause actual results and other matters to
differ materially from those in such forward-looking statements: increases in
defaults by borrowers and other loan delinquencies; increases in the provision
for loan losses; failure by the Company to realize expected cost savings or
revenue enhancements from the merger with America First Eureka Holdings, Inc.
("AFEH"); deposit attrition; customer loss or revenue loss; costs or
difficulties related to the integration of the businesses of the Company and
AFEH and their respective subsidiaries; the Company's ability to sustain or
improve the performance of its subsidiaries; a delay or denial of approval of
the Company's conversion to a bank holding company; the ability to identify
suitable future acquisition candidates; changes in interest rates which may,
among other things, adversely affect net interest margins, derivative positions
and the level of prepayments on loans and mortgage-backed securities;
competition in the banking, financial services and related industries;
government regulation and tax matters; the outcome of pending or threatened
legal or regulatory disputes and proceedings; credit and other risks of lending
and investment activities; changes in conditions in the securities markets
including the value of the Company's common stock; changes in regional and
national business and economic conditions and inflation; and the inability to
utilize net operating loss carryforwards acquired in conjunction with the
Company's acquisition of EurekaBank; and unanticipated effects of Year 2000 on
the Company and the economy. As a result of the foregoing, no assurance can be
given as to future results of operations or financial condition or as to any
other matters covered by any such forward-looking statements, and the Company
wishes to caution investors not to rely on any such forward-looking statements.
The Company does not undertake, and specifically disclaims any obligation, to
update any forward-looking statements to reflect occurrences or unanticipated
events or circumstances after the date of such statements.
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