<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1998.
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
BAY VIEW CAPITAL DELAWARE 94-3078031
CORPORATION DELAWARE APPLIED FOR
BAY VIEW CAPITAL I DELAWARE APPLIED FOR
BAY VIEW CAPITAL II
(STATE OR OTHER (I.R.S. EMPLOYER
(EXACT NAME OF REGISTRANT JURISDICTION OF IDENTIFICATION NUMBER)
AS SPECIFIED IN ITS INCORPORATION)
CHARTER)
1840 GATEWAY DRIVE, SAN MATEO, CALIFORNIA 94404
(650) 573-7300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
---------------
ROBERT J. FLAX
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
BAY VIEW CAPITAL CORPORATION
1840 GATEWAY DRIVE, SAN MATEO, CALIFORNIA 94404
(650) 573-7300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE OF PROCESS)
---------------
COPIES TO:
<TABLE>
<S> <C>
CHRISTOPHER R. KELLY, P.C. ERIC S. HAUETER
SILVER, FREEDMAN & TAFF, L.L.P. BROWN & WOOD LLP
1100 NEW YORK AVENUE, N.W. 555 CALIFORNIA STREET
WASHINGTON, D.C. 20005 SAN FRANCISCO, CALIFORNIA 94104
(202) 414-6100 (415) 772-1200
(202) 682-0354 (FAX) (415) 397-4621 (FAX)
</TABLE>
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
---------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, please check the
following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED(1) REGISTERED(1) PER UNIT(1) PRICE(1)(2) FEE
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities of Bay View Capital
Corporation
(the "Company")(3)(4).................... --
Serial Preferred Stock ("Preferred Stock")
of the Company(5)........................ --
Common Stock of the Company(5)(6)......... --
Common Stock Warrants of the Company(7)... (10) -- 450,000,000(10) $132,750
Depositary Shares(5)(8)................... --
Trust Preferred Securities of Bay View
Capital I and
Bay View Capital II (the "Trusts")(5).... --
Guarantees of Trust Preferred
Securities(9)............................ --
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Footnotes on next page)
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
Pursuant to Rule 429 under the Securities Act, the prospectus included in
this Registration Statement is a combined prospectus relating also to
Registration Statement No. 333-29757 previously filed by the Company under the
Securities Act. This Registration Statement also constitutes post-effective
amendment No. 1 to such Registration Statement No. 333-29757 and such post-
effective amendment shall hereafter become effective concurrently with the
effectiveness of this Registration Statement and in accordance with Section
8(c) of the Securities Act.
(Footnotes from previous page)
(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3. Securities registered hereby may be
offered for U.S. dollars or the equivalent thereof in foreign currencies,
currency units or composite currencies. Securities registered hereby may
be sold separately, together or in units with other securities registered
hereby.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(o). The proposed maximum offering price will be
determined from time to time by the applicable Registrant in connection
with the issuance by such Registrant of the securities registered
hereunder.
(3) Debt Securities include senior Debt Securities, subordinated Debt
Securities and junior subordinated Debt Securities. If any Debt
Securities are issued at an original issue discount, then such greater
amount as may be sold for an aggregate initial offering price of up to
the proposed maximum aggregate offering price.
(4) In addition to any Debt Securities that may be issued directly under this
Registration Statement, there is being registered hereunder such
indeterminate amount of Debt Securities as may be issued upon conversion
or exchange of other Debt Securities, Preferred Stock, Depositary Shares
or Trust Preferred Securities, for which no consideration will be
received by the Registrants, and such aggregate principal amount of Debt
Securities as may be issued and sold to any Trust in connection with the
issuance by such Trust of its Trust Preferred Securities. Any Debt
Securities sold to any Trust as aforesaid may be distributed, under
certain circumstances, to the holders of its Trust Preferred Securities
for no additional consideration.
(5) Such indeterminate number of shares of Preferred Stock and Common Stock,
and such indeterminate number of Depositary Shares and Trust Preferred
Securities, as may be issued from time to time at indeterminate prices.
In addition to any Preferred Stock, Depositary Shares, Common Stock and
Trust Preferred Securities that may be issued directly under this
Registration Statement, there are being registered hereunder such
indeterminate number of shares of Preferred Stock and Common Stock, and
such indeterminate number of Depositary Shares, as may be issued upon
conversion or exchange of Debt Securities, Preferred Stock, Depositary
Shares or Trust Preferred Securities, as the case may be, for which no
separate consideration will be received by the Registrants.
(6) The aggregate amount of Common Stock registered hereunder is limited,
solely for purposes of any at the market offerings, to that which is
permissible under Rule 415(a)(4) of the Securities Act. Each share of
Common Stock being registered hereunder, if issued prior to the
expiration of the Company's Stockholder Protection Rights Agreement or
the redemption of the rights (the "Rights") to purchase Common Stock
issued thereunder, will include one such Right.
(7) Common Stock Warrants will represent rights to purchase Common Stock
registered hereby.
(8) Depositary Shares will represent fractional interests in shares of
Preferred Stock registered hereby.
(9) The Company is also registering hereby all other obligations that it may
have with respect to the Trust Preferred Securities issued by any of the
Trusts, including, without limitation, the Company's obligations with
respect to such Trust Preferred Securities under such Trust's declaration
of trust and the Company's indenture relating to the Debt Securities
issued to such Trust, in each case as the same may be amended, restated
or supplemented from time to time. No separate consideration will be
received for any Guarantee.
(10) In addition to the proposed maximum offering price set forth above, a
total $50,000,000 proposed maximum aggregate offering price of securities
or, if any such securities are issued at an original issue discount, such
greater amount as may be sold for an aggregate initial offering price of
up to $50,000,000 (or the equivalent thereof in foreign currencies,
currency units or composite currencies) is being carried forward from
Registration Statement No. 333-29757 previously filed by the Company
under the Securities Act; filing fees of $15,151.67 were previously paid
to register such securities under such prior registration statement.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 30, 1998
PROSPECTUS
BAY VIEW CAPITAL CORPORATION
DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES,
COMMON STOCK AND COMMON STOCK WARRANTS
BAY VIEW CAPITAL I AND BAY VIEW CAPITAL II
TRUST PREFERRED SECURITIES GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
BAY VIEW CAPITAL CORPORATION
-----------
Bay View Capital Corporation (the "Company") may from time to time offer and
sell (i) its unsecured senior debt securities (the "Senior Debt Securities"),
its unsecured subordinated debt securities (the "Subordinated Debt Securities")
and its unsecured junior subordinated debt securities (the "Junior Subordinated
Debt Securities" and, together with the Senior Debt Securities and the
Subordinated Debt Securities, the "Debt Securities"); (ii) shares of its serial
preferred stock, par value $.01 per share (the "Preferred Stock"), in one or
more series; (iii) depositary shares (the "Depositary Shares") representing
fractional interests in shares of Preferred Stock; (iv) shares of its common
stock, par value $.01 per share (the "Common Stock"); and (v) warrants to
purchase shares of Common Stock (the "Common Stock Warrants"). Unless otherwise
stated in the applicable Prospectus Supplement (as defined herein), payment of
the principal of the Subordinated Debt Securities of any series may be
accelerated only in the case of certain events involving the bankruptcy,
insolvency or reorganization of the Company or any Major Bank Subsidiary (as
defined in the applicable Prospectus Supplement) of the Company, and no right
of acceleration will exist with respect to the Subordinated Debt Securities of
any series in the case of default in the payment of the principal of, or
premium, if any, or interest, if any, on the Subordinated Debt Securities of
such series or in the performance of any other covenant of the Company
applicable to the Subordinated Debt Securities of such series. See "Description
of Debt Securities--Events of Default; Limited Rights of Acceleration of
Subordinated Debt Securities."
Bay View Capital I and Bay View Capital II (the "Trusts"), each a statutory
business trust created under the laws of the State of Delaware, may each offer
preferred securities representing undivided beneficial interests in the assets
of such Trust ("Trust Preferred Securities"). The payment of periodic cash
distributions ("distributions") with respect to Trust Preferred Securities out
of moneys held by the applicable Trust, and payment on liquidation, redemption
or otherwise with respect to such Trust Preferred Securities, will be
guaranteed by the Company to the extent described herein (a "Trust Preferred
Securities Guarantee"). See "Description of Trust Preferred Securities
Guarantees." Unless otherwise stated in the applicable Prospectus Supplement,
the Company's obligations under a Trust Preferred Securities Guarantee will be
subordinate and junior in right of payment to all other liabilities of the
Company. A series of Junior Subordinated Debt Securities may be issued and sold
to the applicable Trust, or a trustee of such Trust, in connection with the
investment of the proceeds from the offering of the Trust Preferred Securities
and Trust Common Securities (as defined herein, together, "Trust Securities")
of such Trust. The Junior Subordinated Debt Securities purchased by a Trust may
be subsequently distributed pro rata to holders of its Trust Preferred
Securities and Trust Common Securities in connection with the dissolution of
such Trust upon the occurrence of certain events as may be described in an
accompanying supplement to this Prospectus (a "Prospectus Supplement"). A Trust
Preferred Securities Guarantee, when taken together with the Company's other
obligations under the Junior Subordinated Debt Securities sold to the
applicable Trust, the Indenture (as defined herein) relating to such Junior
Subordinated Debt Securities and the Declaration (as defined herein) of such
Trust, including the Company's obligations to pay certain costs, expenses,
debts and liabilities of such Trust (other than with respect to its Trust
Securities), will provide a full and unconditional guarantee on a subordinated
basis by the Company of payments due on the Trust Preferred Securities of such
Trust.
The Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Common
Stock Warrants and Trust Preferred Securities (collectively, the "Securities")
may be offered from time to time for an aggregate initial public offering price
of up to $500,000,000 (or the equivalent in foreign currencies, currency units
or composite currencies (each, a "Currency")). The Securities may be offered
independently or together in any combination for sale directly to purchasers or
through dealers, underwriters or agents to be designated. The Debt Securities,
Preferred Stock and Trust Preferred Securities may be convertible into or
exchangeable for other Securities. The Securities will be offered to the public
at prices and on terms determined at the time of offering. The Securities may
be sold for U.S. dollars or other Currencies and any amounts payable by the
Company or any Trust, as the case may be, in respect of the Securities may
likewise be payable in U.S. dollars or other Currencies.
(continued on following page)
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
THESE DEBT SECURITIES ARE UNSECURED OBLIGATIONS OF THE COMPANY. THESE
SECURITIES ARE NOT DEPOSITS OR SAVINGS ACCOUNTS AND ARE NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
-----------
The date of this Prospectus is , 1998.
<PAGE>
(continued from cover page)
The Prospectus Supplement to this Prospectus sets forth (where applicable),
with respect to the series or issue of Securities (the "Offered Securities")
for which such Prospectus Supplement is being delivered: (i) the terms of any
Debt Securities offered, including, where applicable, their title, ranking,
aggregate principal amount, maturity, rate of interest (or method of
calculation) and time of payment thereof, any redemption or repayment terms,
the Currency or Currencies in which such Debt Securities will be denominated
or payable, any index, formula or other method pursuant to which principal,
premium, if any, or interest, if any, may be determined, any conversion or
exchange provisions, the right of the Company, if any, to defer payment of
interest on such Debt Securities and the maximum length of any such deferral
period, and other specific terms not described in this Prospectus; (ii) the
terms of any Preferred Stock offered, including, where applicable, the
specific designation, number of shares, dividend rate (or method of
calculation) and time of payment thereof, liquidation preference, any
redemption or repayment terms, any conversion or exchange provisions, any
voting rights, and other specific terms not described in this Prospectus;
(iii) the terms of any Depositary Shares offered which are not described in
this Prospectus, including the fraction of a share of Preferred Stock
represented by each such Depositary Share; (iv) the terms of any Common Stock
Warrants offered, including where applicable, the exercise price,
detachability, duration and other specific terms not described in this
Prospectus; (v) the initial public offering price and the net proceeds to the
Company and other specific terms related to the Offered Securities; and (vi)
the terms of any Trust Preferred Securities offered, including, where
applicable, the specific designation, number of Trust Preferred Securities,
distribution rate (or method of calculation) and time of payment thereof,
liquidation amount, any redemption or repayment terms, any conversion or
exchange provisions, any voting rights, the right of the applicable Trust, if
any, to defer payment of distributions on the Trust Preferred Securities and
the maximum length of any such deferral period, and other specific terms not
described in this Prospectus.
This Prospectus may not be used to consummate sales of Securities unless
accompanied or, to the extent permitted by applicable law, preceded by a
Prospectus Supplement.
The Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the accompanying Prospectus
Supplement. The Securities may be sold for U.S. dollars or other Currencies
and any amounts payable by the Company in respect of the Securities may
likewise be payable in U.S. dollars or other Currencies. Net proceeds from the
sale of Securities will be equal to the purchase price in the case of a
dealer, the public offering price less discount in the case of an underwriter
or the purchase price less commission in the case of an agent, in each case
less other expenses attributable to the issuance and distribution of the
Securities. The Company and the Trusts may also sell Securities directly to
investors on their own behalf. In the case of sales made directly by the
Company or the Trusts, no commission will be payable. See "Plan of
Distribution" for possible indemnification arrangements for dealers,
underwriters and agents.
2
<PAGE>
Certain persons participating in an offering of Securities may engage in
transactions that stabilize, maintain or otherwise affect the price of such
Securities. Such transactions may include stabilizing and the purchase of such
Securities to cover syndicate short positions. For a description of any such
activities, see the applicable Prospectus Supplement.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the Commission's
Regional Offices in New York (Seven World Trade Center, 13th Floor, New York,
New York 10048), and Chicago (Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661). Copies of these materials may be obtained from
the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such material may also be
accessed electronically by means of the Commission's home page on the Internet
at http://www.sec.gov. Reports, proxy statements and other information
concerning the Company may also be inspected at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
This Prospectus constitutes a part of a registration statement on Form S-3
(the "Registration Statement") filed by the Company and the Trusts with the
Commission under the Securities Act of 1933, as amended (the "Securities
Act"). This Prospectus omits certain of the information contained in the
Registration Statement in accordance with the rules and regulations of the
Commission. Reference is hereby made to the Registration Statement and related
exhibits for further information with respect to the Company, the Trusts and
the Securities. Statements contained herein concerning the provisions of any
document are not necessarily complete and, in each instance, reference is made
to the copy of such document filed or incorporated by reference as an exhibit
to the Registration Statement or otherwise filed with the Commission. Each
such statement is qualified in its entirety by such reference.
No separate financial statements of the Trusts have been included herein.
The Company does not consider that such financial statements would be material
to holders of the Trust Preferred Securities because (i) all of the voting
securities of the Trusts will be owned, directly or indirectly, by the
Company, a reporting company under the Exchange Act, (ii) the Trusts have no
independent operations but exist for the sole purpose of issuing securities
representing undivided beneficial interests in the assets of the respective
Trusts and investing the proceeds thereof in Junior Subordinated Debt
Securities issued by the Company, and (iii) the Company's obligations
described herein and in any accompanying Prospectus Supplement under the
applicable Trust Preferred Securities Guarantee, when taken together with the
Company's other obligations under the Junior Subordinated Debt Securities sold
to the applicable Trust, the Indenture relating to such Junior Subordinated
Debt Securities and the Declaration of such Trust, including the Company's
obligations to pay certain costs, expenses, debts and liabilities of such
Trust (other than with respect to its Trust Securities), will provide a full
and unconditional guarantee on a subordinated basis by the Company of payments
due on the Trust Preferred Securities of such Trust. See "Description of Debt
Securities" and "Description of Trust Preferred Securities Guarantees."
1
<PAGE>
FORWARD-LOOKING STATEMENTS
Certain statements included or incorporated by reference herein and in the
accompanying Prospectus Supplement constitute "forward-looking statements"
within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act and are subject to a number of risks and uncertainties. Any such
forward-looking statements contained or incorporated by reference herein or in
the accompanying Prospectus Supplement should not be relied upon as
predictions of future events. Certain such forward-looking statements can be
identified by the use of forward-looking terminology such as "believes,"
"expects," "may," "are expected to," "will," "will allow," "will continue,"
"will likely result," "should," "would be," "seeks," "approximately,"
"intends," "plans," "projects," "pro forma," "estimates" or "anticipates" or
similar expressions or the negative thereof or other variations thereof or
comparable terminology, or by discussions of strategy, plans or intentions. In
addition, all information included or incorporated by reference herein and in
the accompanying Prospectus Supplement with respect to projected 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 they 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 and in addition to the matters discussed elsewhere in this Prospectus,
the accompanying Prospectus Supplement and the documents incorporated or
deemed to be incorporated by reference herein, could cause actual results and
other matters to differ materially from those in such forward-looking
statements: increases in defaults by borrowers and other loan delinquencies;
increases in the provision for loan losses; deposit attrition, customer loss
or revenue loss; failure by the Company to realize expected cost savings or
revenue enhancements from the Merger (as hereinafter defined); costs or
difficulties related to the integration of the businesses of the Company and
AFEH (as hereinafter defined) and their respective subsidiaries; the Company's
ability to sustain or improve the performance of its subsidiaries; the ability
to identify suitable future acquisition candidates; changes in interest rates
which may, among other things, adversely affect net interest margins 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 Common Stock; and changes in regional and national business and
economic conditions and inflation. As a result of the foregoing, no assurance
can be given as to future results of operations or financial condition or as
to any other matters covered by any such forward-looking statements, and the
Company wishes to caution prospective investors not to rely on any such
forward-looking statements. The Company does not undertake, and specifically
disclaims any obligation, to update any forward-looking statements, which
speak only as of the date made.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the Commission
and are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997,
2. The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1998,
3. The Company's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1998,
4. The Company's Current Report on Form 8-K filed on January 20, 1998,
5. The Company's Current Report on Form 8-K filed on March 3, 1998,
6. The Company's Current Report on Form 8-K filed on May 14, 1998,
7. The Company's Current Report on Form 8-K/A filed on June 15, 1998,
amending the Current Report on Form 8-K/A, filed on June 12, 1998,
amending the Current Report on Form 8-K/A, filed on May 6, 1998,
amending the Current Report on Form 8-K, filed on April 30, 1998 (all
such Current Reports being incorporated herein by reference),
8. The Company's Current Report on Form 8-K filed on June 15, 1998,
9. The Company's Current Report on Form 8-K filed on June 24, 1998,
10. The Company's Current Report on Form 8-K filed on August 31, 1998,
and
11. The Company's Current Report on Form 8-K filed on September 30, 1998.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior
to the termination of the offering of the Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from
the respective dates of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein, in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein or in the applicable Prospectus Supplement modifies or
supersedes such statement. Any statement or document so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute part
of this Prospectus.
The Company will furnish without charge to each person to whom this
Prospectus is delivered, upon request, a copy of any and all of the documents
described above that are incorporated by reference herein other than exhibits
to such documents which are not specifically incorporated by reference in such
documents. Written or telephone requests should be directed to: Robert J.
Flax, Esq., Executive Vice President, General Counsel and Secretary, Bay View
Capital Corporation, 1840 Gateway Drive, San Mateo, California 94404
(telephone (650) 573-7300).
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in
this Prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy any
securities other than the securities described in this Prospectus or an offer
to sell or the solicitation of an offer to buy such securities in any
jurisdiction where or to any person to whom it is unlawful to make such an
offer or solicitation. Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made hereunder or thereunder shall, under
any circumstances, create any implication that there has been no change in the
affairs of the Company or the Trusts since the date hereof or thereof or that
the information contained or incorporated by reference herein or therein is
correct as of any time subsequent to its date.
3
<PAGE>
THE COMPANY
GENERAL
Bay View Capital Corporation (the "Company"), a Delaware corporation, is a
diversified financial services company. The Company conducts its operations
through the following subsidiaries: (i) Bay View Bank (the "Bank"), a
federally chartered capital stock savings bank, (ii) Bay View Acceptance
Corporation ("BVAC"), a Nevada corporation operating as a consumer finance
company, and its subsidiaries Bay View Credit ("BVC") (formerly California
Thrift & Loan), a California corporation, Ultra Funding, Inc. ("Ultra"), a
California corporation, and LFS-BV, Inc., a Nevada corporation, and (iii) Bay
View Commercial Finance Group ("BVCF") (formerly Concord Growth Corporation),
a California corporation operating as a commercial finance company. The
Company also owns Bay View Securitization Corporation ("BVSC"), a Delaware
corporation formed for the purpose of issuing asset-backed securities through
a trust, and Regent Financial Corporation ("Regent"), a California corporation
providing data processing services.
Effective January 2, 1998, the Company acquired America First Eureka
Holdings, Inc. ("AFEH") and AFEH's wholly owned subsidiary, EurekaBank, a
Federal Savings Bank ("EurekaBank"). Under the terms of the definitive merger
agreement (the "Merger Agreement"), AFEH was merged into the Company, with the
Company as the surviving corporation (the "Merger"), and EurekaBank was merged
into the Bank, with the Bank as the surviving bank. At December 31, 1997, AFEH
had $2.3 billion in assets and 36 retail banking branches operating throughout
the San Francisco Bay Area.
The Company's executive offices are located at 1840 Gateway Drive, San
Mateo, California 94404, and its telephone number is (650) 573-7300. Unless
otherwise indicated or unless the context otherwise requires, all references
in this Prospectus and any Prospectus Supplement to the Company include Bay
View Capital Corporation and its consolidated subsidiaries.
PENDING STRUCTURAL CHANGES
In September 1998, the Bank filed an application with the Office of the
Comptroller of the Currency to convert from a federally chartered savings bank
to a national bank and, in connection therewith, the Company filed an
application with the Federal Reserve Board (as defined herein) to become a
bank holding company. Although there can be no assurance that these
applications will be approved, management anticipates that the required
approvals will be obtained and the transactions completed in the fourth
quarter of 1998. Thereafter, the Company will be a bank holding company
regulated by the Federal Reserve Board and the Bank will be a national bank
regulated by the Office of the Comptroller of the Currency. Upon becoming a
bank holding company, the Company will deregister as a savings and loan
holding company with the Office of Thrift Supervision. Set forth below is a
summary, which does not purport to be complete, of certain aspects of bank
holding company regulation.
Regulation of Bank Holding Companies. Bank holding companies are, and if the
Company becomes a bank holding company, the Company will be, subject to
comprehensive regulation by the Federal Reserve Board under the Bank Holding
Company Act of 1956, as amended (the "BHCA"), and the regulations of the
Federal Reserve Board. As a bank holding company, the Company will be required
to file reports with the Federal Reserve Board and such additional information
as the Federal Reserve Board may require, and will be subject to regular
inspections by the Federal Reserve Board. The Federal Reserve Board also has
extensive enforcement authority over bank holding companies, including, among
other things, the ability to assess civil money penalties, to issue cease and
desist or removal orders and to require that a bank holding company divest
subsidiaries (including its bank subsidiaries). In general, enforcement
actions may be initiated for violations of law and regulation as well as
unsafe or unsound practices.
Under Federal Reserve Board policy, a bank holding company must serve as a
source of strength for its subsidiary banks. Under this policy the Federal
Reserve Board may require, and has required in the past, bank holding
companies to contribute additional capital to undercapitalized subsidiary
banks.
4
<PAGE>
Under the BACH, a bank holding company must obtain Federal Reserve Board
approval before, among other matters: (i) acquiring, directly or indirectly,
ownership or control of any voting shares of another bank or bank holding
company if, after such acquisition, it would own or control more than 5% of
such shares (unless it already owns or controls the majority of such shares);
(ii) acquiring all or substantially all of the assets of another bank or bank
holding company; or (iii) merging or consolidating with another bank holding
company.
As a savings and loan holding company, the Company is generally not subject
to any activity restrictions, but as a bank holding company it will be subject
to the activity limitations imposed on bank holding companies. The BHCA
prohibits a bank holding company, with certain exceptions, from acquiring
direct or indirect ownership or control of more than 5% of the voting shares
of any company which is not a bank or bank holding company, or from engaging
directly or indirectly in activities other than those of banking, managing or
controlling banks, or providing services for its subsidiaries. The principal
exceptions to these prohibitions involve certain non-bank activities which, by
statute or by Federal Reserve Board regulation or order, have been identified
as activities closely related to the business of banking or managing or
controlling banks. The list of activities permitted by the Federal Reserve
Board includes, among other things, operating a savings institution, mortgage
company, finance company, credit card company or factoring company; performing
certain data processing operations; providing certain investment and financial
advice; underwriting and acting as an insurance agent for certain types of
credit-related insurance; leasing property on a full-payout, non-operating
basis; selling money orders, travelers' checks and United States savings
bonds; real estate and personal property appraising; providing tax planning
and preparation services; and providing securities brokerage services for
customers. The scope of permissible activities may be expanded from time to
time by the Federal Reserve Board. Such activities may also be affected by
federal legislation.
Dividends. The Federal Reserve Board has issued a policy statement on the
payment of cash dividends by bank holding companies, which expresses the
Federal Reserve Board's view that a bank holding company should pay cash
dividends only to the extent that its net income for the past year is
sufficient to cover both the cash dividends and a rate of earning retention
that is consistent with the bank holding company's capital needs, asset
quality and overall financial condition. The Federal Reserve Board also has
indicated that it would be inappropriate for a company experiencing serious
financial problems to borrow funds to pay dividends. Furthermore, under the
prompt corrective action regulations adopted by the Federal Reserve Board, the
Federal Reserve Board may prohibit a bank holding company from paying any
dividends if any of the holding company's bank subsidiaries are classified as
"undercapitalized."
Repurchase or Redemption of Equity Securities. Bank holding companies are
required to give the Federal Reserve Board prior written notice of any
purchase or redemption of their outstanding equity securities if the gross
consideration for the purchase or redemption, when combined with the net
consideration paid for all such purchases or redemptions during the preceding
12 months, is equal to 10% or more of their consolidated net worth. The
Federal Reserve Board may disapprove such a purchase or redemption if it
determines that the proposal would constitute an unsafe or unsound practice or
would violate any law, regulation, Federal Reserve Board order, or any
condition imposed by, or written agreement with, the Federal Reserve Board.
This notification requirement does not apply to any company that meets the
well-capitalized standard for commercial banks, has a safety and soundness
examination rating of at least a "2" and is not subject to any unresolved
supervisory issues.
Capital Requirements. The Federal Reserve Board has established capital
requirements for bank holding companies that generally parallel the capital
requirements for national banks and federal thrift institutions. As a savings
and loan holding company, the Company is not subject to any minimum capital
requirements.
5
<PAGE>
THE TRUSTS
Each of Bay View Capital I and Bay View Capital II (each, a "Trust") is a
statutory business trust created under Delaware law pursuant to (i) a trust
agreement (as the same may be amended, supplemented or restated from time to
time, a "Declaration") executed by the Company, as sponsor (the "Sponsor"),
and certain of the Bay View Trustees (as defined herein) for such Trust and
(ii) the filing of a certificate of trust with the Delaware Secretary of
State. Each Trust exists for the exclusive purposes of (i) issuing its Trust
Preferred Securities and common securities representing undivided beneficial
interests in the assets of such Trust (the "Trust Common Securities" and,
together with the Trust Preferred Securities, the "Trust Securities"), (ii)
investing the gross proceeds of its Trust Securities in a specific series of
Junior Subordinated Debt Securities and (iii) engaging in only those other
activities necessary or incidental thereto. All of the Trust Common Securities
will be directly or indirectly owned by the Company. The Trust Common
Securities of each Trust will rank pari passu, and payments will be made
thereon pro rata, with the Trust Preferred Securities of such Trust except
that upon an event of default under the Declaration of such Trust, the rights
of the holders of its Trust Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of its Trust Preferred Securities.
In connection with the issuance of Trust Preferred Securities by a Trust, the
Company will, directly or indirectly, acquire Trust Common Securities of such
Trust in an aggregate liquidation amount equal to approximately 3% of the
total capital of such Trust. Each Trust's business and affairs will be
conducted by the trustees (with respect to each Trust, the "Bay View
Trustees") appointed by the Company, as the direct or indirect holder of all
the Trust Common Securities of such Trust. Except in certain limited
circumstances, the holder of the Trust Common Securities of a Trust will be
entitled to appoint, remove or replace any of, and to increase or reduce the
number of, the Bay View Trustees of such Trust. The duties and obligations of
the Bay View Trustees of each Trust shall be governed by its Declaration. A
majority of the Bay View Trustees (the "Regular Trustees") of each Trust will
be persons who are employees or officers of or affiliated with the Company.
One Bay View Trustee of each Trust will be a financial institution which will
be unaffiliated with the Company and which shall act as property trustee and
as indenture trustee (the "Property Trustee") of such Trust for purposes of
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). In
addition, unless the Property Trustee of a Trust maintains a principal place
of business in the State of Delaware, and otherwise meets the requirements of
applicable law, one Bay View Trustee of each Trust will have its principal
place of business or reside in the State of Delaware (the "Delaware Trustee").
The Regular Trustees, Property Trustee and Delaware Trustee of a Trust may be
different from the Regular Trustees, Property Trustee and Delaware Trustee of
the other Trust. The Company will pay all fees and expenses related to the
Trusts and the offering of Trust Securities. The payment of periodic
distributions with respect to the Trust Preferred Securities of a Trust out of
moneys held by such Trust, and payment on liquidation, redemption or otherwise
with respect to the Trust Preferred Securities, will be guaranteed by the
Company to the extent described herein. See "Description of Trust Preferred
Securities Guarantees." Unless otherwise stated in the applicable Prospectus
Supplement, the Company's obligations under each Trust Preferred Securities
Guarantee will be subordinate and junior in right of payment to all other
liabilities of the Company. The principal place of business of the Trusts
shall be c/o Bay View Capital Corporation, 1840 Gateway Drive, San Mateo,
California 94404 (telephone: (650) 573-7300).
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities
offered hereby for general corporate purposes, which may include, among other
things, the repayment of indebtedness, investments in or extensions of credit
to its subsidiaries and the financing of acquisitions. Pending such
application, such proceeds may be invested in short-term investments and
marketable securities. The proceeds from the sale of Trust Securities will be
invested by the respective Trusts in Junior Subordinated Debt Securities.
6
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratios of earnings to fixed
charges for the Company for the periods indicated. Earnings represent income
from continuing operations before income taxes, fixed charges and
extraordinary items. Fixed charges include interest expense and the portion of
rental expense which approximates the interest component of lease payments
(estimated at 20% of rental expense). Such information is qualified in its
entirety by the more detailed financial information set forth in the Company's
financial statements and notes thereto appearing in the documents incorporated
herein by reference. See "Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
-------------- ----------------------------------------------
1998 1997 1997 1996 1995 1994 1993
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges:
Including interest on customer
deposits........................... 1.16x 1.23x 1.15x 1.12x 0.98x(1) 1.17x 1.18x
Excluding interest on customer
deposits........................... 1.43x 1.46x 1.29x 1.31x 0.96x(1) 1.35x 1.41x
</TABLE>
- --------
(1) Earnings were inadequate to cover fixed charges for the year ended
December 31, 1995. The amount of the deficiency was $2,853,710.
7
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Company may issue Debt Securities either separately, or together with,
or upon the conversion of or in exchange for, other Securities. The Debt
Securities are to be either unsecured senior obligations (the "Senior Debt
Securities") of the Company issued in one or more series, unsecured
subordinated obligations (the "Subordinated Debt Securities") of the Company
issued in one or more series, or unsecured junior subordinated obligations
(the "Junior Subordinated Debt Securities") of the Company issued in one or
more series. The Senior Debt Securities will be issued under an Indenture (the
"Senior Indenture") to be entered into by the Company and a trustee (the
"Senior Trustee") whose name will be set forth in the applicable Prospectus
Supplement; the Subordinated Debt Securities will be issued under an Indenture
(the "Subordinated Indenture") to be entered into by the Company and a trustee
(the "Subordinated Trustee") whose name will be set forth in the applicable
Prospectus Supplement; and the Junior Subordinated Debt Securities will be
issued under an Indenture (the "Junior Subordinated Indenture") to be entered
into by the Company and a trustee (the "Junior Subordinated Trustee") whose
name will be set forth in the applicable Prospectus Supplement. The Senior
Indenture, Subordinated Indenture and Junior Subordinated Indenture are
hereinafter called, collectively, the "Indentures" and, individually, an
"Indenture"; and the Senior Trustee, Subordinated Trustee and Junior
Subordinated Trustee are hereinafter called, collectively, the "Trustees" and,
individually, a "Trustee." The forms of the Indentures have been filed as
exhibits to the Registration Statement. The terms of any series of Debt
Securities will be those set forth in the applicable Indenture and such Debt
Securities and those made part of such Indenture by the Trust Indenture Act.
The summary of certain provisions of the Indentures and the Debt Securities
set forth below and the summary of certain terms of a particular series of
Debt Securities set forth in the applicable Prospectus Supplement do not
purport to be complete and are subject to and are qualified in their entirety
by reference to all of the provisions of the Indentures, which provisions of
the Indentures (including defined terms) are incorporated herein by reference.
Certain capitalized terms used herein and not defined are defined in the
Indentures. As used in this "Description of Debt Securities," all references
to the "Company" shall mean Bay View Capital Corporation, excluding, unless
otherwise expressly stated or the context shall otherwise require, its
subsidiaries.
In the event that Junior Subordinated Debt Securities are issued to a Trust
or a trustee of such Trust in connection with the issuance of its Trust
Securities, such Junior Subordinated Debt Securities may subsequently be
distributed pro rata to the holders of such Trust Securities in connection
with the dissolution of such Trust upon the occurrence of certain events
described in the Prospectus Supplement relating to such Trust Securities. Only
one series of Junior Subordinated Debt Securities will be issued to a Trust or
a trustee of such Trust in connection with the issuance of Trust Securities by
such Trust.
The following description of Debt Securities sets forth certain general
terms and provisions of the series of Debt Securities to which any Prospectus
Supplement may relate. Certain other specific terms of any particular series
of Debt Securities will be described in the applicable Prospectus Supplement.
To the extent that any particular terms of the Debt Securities described in a
Prospectus Supplement differ from any of the terms described herein, then such
terms described herein shall be deemed to have been superseded by such
Prospectus Supplement.
GENERAL
The Debt Securities may be issued from time to time in one or more series of
Senior Debt Securities, one or more series of Subordinated Debt Securities and
one or more series of Junior Subordinated Debt Securities. The Indentures do
not limit the aggregate principal amount of Debt Securities which may be
issued thereunder and provide that Debt Securities of any series may be issued
thereunder up to an aggregate principal amount which may be authorized from
time to time by the Company. Reference is made to the applicable Prospectus
Supplement relating to the series of Debt Securities offered thereby for
specific terms, including (where applicable): (1) the title or designation of
such Debt Securities; (2) any limit on the aggregate principal amount of such
Debt Securities; (3) the price or prices (expressed as a percentage of the
principal amount thereof) at which such Debt Securities will be issued; (4)
the date or dates on which the principal of such Debt Securities
8
<PAGE>
will be payable, or the method or methods, if any, by which such date or dates
will be determined; (5) the rate or rates (which may be fixed or variable) at
which such Debt Securities will bear interest, if any, or the method or
methods, if any, by which such rate or rates are to be determined, the date or
dates, if any, from which such interest will accrue, or the method or methods,
if any, by which such date or dates are to be determined, and whether and
under what circumstances Additional Amounts on such Debt Securities will be
payable, and the basis upon which interest will be calculated if other than
that of a 360-day year of twelve 30-day months; (6) the dates on which such
interest, if any, will be payable and the record dates, if any, therefor and,
if applicable, the manner in which such interest payments may be deferred; (7)
the place or places where the principal of, premium, if any, and interest, if
any, on such Debt Securities will be payable and the place or places where
such Debt Securities may be surrendered for registration of transfer and
exchange, if other than the Borough of Manhattan, The City of New York; (8) if
applicable, the date or dates on which, the period or periods within which,
the price or prices at which and the other terms and conditions upon which
such Debt Securities may be redeemed at the option of the Company or are
subject to repurchase at the option of the holders; (9) the terms of any
sinking fund or analogous provision; (10) if other than U.S. dollars, the
Currency for which the Debt Securities may be purchased and the Currency in
which the payment of principal thereof and premium, if any, and interest, if
any, thereon may be made, and the ability, if any, of the Company or the
holders of Debt Securities to have payments made in any Currency other than
those in which the Debt Securities are stated to be payable; (11) any addition
to, or modification or deletion of, any covenant or Event of Default with
respect to such Debt Securities; (12) whether any such Debt Securities are to
be issuable in registered or bearer form or both and, if in bearer form, the
terms and conditions relating thereto and any limitations on issuance of such
Bearer Securities (including in exchange for Registered Securities of the same
series); (13) whether any such Debt Securities will be issued in temporary or
permanent global form and, if so, the identity of the depositary for such
global Debt Security; (14) whether and under what circumstances the Company
will pay Additional Amounts (as contemplated by the relevant Indenture) on
such Debt Securities to any holder who is a United States Alien (as defined in
the relevant Indenture, as such definition may be modified) in respect of any
tax, assessment or other governmental charge and, if so, whether the Company
will have the option to redeem such Debt Securities rather than pay such
Additional Amounts; (15) the person to whom any interest on any Registered
Securities of the series shall be payable, if other than the person in whose
name the Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the person to whom, any interest on any
Bearer Security of the series shall be payable, if other than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Debt Security will be paid if other
than in the manner provided in the relevant Indenture; (16) the portion of the
principal amount of such Debt Securities which shall be payable upon
acceleration thereof if other than the full principal amount thereof; (17) the
authorized denominations in which such Debt Securities will be issuable, if
other than denominations of $1,000 and any integral multiple thereof (in the
case of Registered Securities) or $5,000 (in the case of Bearer Securities);
(18) the terms, if any, upon which such Debt Securities may be convertible
into or exchangeable for other Securities; (19) whether such Debt Securities
will be Senior Debt Securities, Subordinated Debt Securities or Junior
Subordinated Debt Securities and, if Subordinated Debt Securities or Junior
Subordinated Debt Securities, the subordination provisions and the definition
of "Senior Indebtedness" applicable thereto; (20) whether the amount of
payments of principal of, premium, if any, and interest, if any, on such Debt
Securities may be determined with reference to an index, formula or other
method or methods (any such Debt Securities being hereinafter called "Indexed
Securities") and the manner in which such amounts will be determined; and (21)
any other terms of such Debt Securities.
As used in this Prospectus and any Prospectus Supplement relating to the
offering of any Debt Securities, references to the principal of and premium,
if any, and interest, if any, on such Debt Securities will be deemed to
include mention of the payment of Additional Amounts, if any, required by the
terms of such Debt Securities in such context.
Debt Securities may be issued as Original Issue Discount Securities (as
defined in the Indentures) to be sold at a substantial discount below their
principal amount. In the event of an acceleration of the maturity of any
9
<PAGE>
Original Issue Discount Security, the amount payable to the holder thereof
upon such acceleration will be determined in the manner described in the
applicable Prospectus Supplement. As noted elsewhere herein, unless otherwise
stated in the applicable Prospectus Supplement, payment of the principal of
the Subordinated Debt Securities may be accelerated only in the case of
certain events of bankruptcy, insolvency or reorganization of the Company or
any Major Bank Subsidiary (as defined in the applicable Prospectus Supplement)
of the Company. See "--Events of Default; Limited Rights of Acceleration of
Subordinated Debt Securities." Material federal income tax and other
considerations applicable to Original Issue Discount Securities will be
described in the applicable Prospectus Supplement.
If the purchase price of any Debt Securities is payable in a Currency other
than U.S. dollars or if principal of, or premium, if any, or interest, if any,
on any of the Debt Securities is payable in any Currency other than U.S.
dollars, the specific terms and other information with respect to such Debt
Securities and such foreign Currency will be specified in the Prospectus
Supplement relating thereto.
Under the Indentures, the terms of the Debt Securities of any series may
differ and the Company, without the consent of the holders of the Debt
Securities of any series, may reopen a previous series of Debt Securities and
issue additional Debt Securities of such series or establish additional terms
of such series.
REGISTRATION, TRANSFER, PAYMENT AND PAYING AGENT
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of Debt Securities will be issued in registered form only, without
coupons. The Indentures, however, provide that the Company may also issue Debt
Securities in bearer form only, or in both registered and bearer form. Bearer
Securities shall not be offered, sold, resold or delivered in connection with
their original issuance in the United States or to any United States person
(as defined below) other than offices located outside the United States of
certain United States financial institutions. As used herein, "United States
person" means any citizen or resident of the United States, any corporation,
partnership or other entity created or organized in or under the laws of the
United States, any estate the income of which is subject to United States
federal income taxation regardless of its source, or any trust whose
administration is subject to the primary supervision of a United States court
and which has one or more United States fiduciaries who have the authority to
control all substantial decisions of the trust, and "United States" means the
United States of America (including the states thereof and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction. Purchasers of Bearer Securities will be subject to certification
procedures and may be affected by certain limitations under United States tax
laws. Such procedures and limitations will be described in the Prospectus
Supplement relating to the offering of the Bearer Securities.
Unless otherwise indicated in the applicable Prospectus Supplement,
Registered Securities will be issued in denominations of $1,000 or any
integral multiple thereof, and Bearer Securities will be issued in
denominations of $5,000.
Unless otherwise indicated in the applicable Prospectus Supplement, the
principal, premium, if any, and interest, if any, of or on the Debt Securities
will be payable, and Debt Securities may be surrendered for registration of
transfer or exchange, at an office or agency to be maintained by the Company
in the Borough of Manhattan, The City of New York, provided that payments of
interest with respect to any Registered Security may be made at the option of
the Company by check mailed to the address of the person entitled thereto or
by transfer to an account maintained by the payee with a bank located in the
United States. No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge and any
other expenses that may be imposed in connection therewith.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest, if any, on Bearer Securities
will be made, subject to any applicable laws and regulations, at such office
or agency outside the United States as specified in the Prospectus Supplement
and as the Company
10
<PAGE>
may designate from time to time. Unless otherwise indicated in the applicable
Prospectus Supplement, payment of interest due on Bearer Securities on any
Interest Payment Date will be made only against surrender of the coupon
relating to such Interest Payment Date. Unless otherwise indicated in the
applicable Prospectus Supplement, no payment of principal, premium or interest
with respect to any Bearer Security will be made at any office or agency in
the United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, that if amounts owing with respect to any Bearer Securities
shall be payable in U.S. dollars, payment with respect to any such Bearer
Securities may be made at the Corporate Trust Office of the applicable Trustee
or at any office or agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount
of such principal, premium or interest at all offices outside of the United
States maintained for such purpose by the Company is illegal or effectively
precluded by exchange controls or similar restrictions.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company will not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before any selection of Debt Securities of that
series of like tenor to be redeemed and ending at the close of business on the
day of that selection; (ii) register the transfer of or exchange any
Registered Security, or portion thereof, called for redemption, except the
unredeemed portion of any Registered Security being redeemed in part; (iii)
exchange any Bearer Security called for redemption, except to exchange such
Bearer Security for a Registered Security of that series and like tenor that
is simultaneously surrendered for redemption; or (iv) issue, register the
transfer of or exchange any Debt Security which has been surrendered for
repayment at the option of the holder, except the portion, if any, of such
Debt Security not to be so repaid.
RANKING OF DEBT SECURITIES; HOLDING COMPANY STRUCTURE
The Senior Debt Securities of each series will be unsecured unsubordinated
obligations of the Company and will rank on a parity in right of payment with
all other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Debt Securities of each series will be unsecured obligations of
the Company and will be subordinated in right of payment to all existing and
future Senior Indebtedness (as defined with respect to the Subordinated Debt
Securities of such series) of the Company. The Junior Subordinated Debt
Securities of each series will be unsecured obligations of the Company and
will be subordinated in right of payment to all existing and future Senior
Indebtedness (as defined with repect to the Junior Subordinated Debt
Securities of such series). If this Prospectus is being delivered in
connection with the offering of a series of Subordinated Debt Securities or
Junior Subordinated Debt Securities, the accompanying Prospectus Supplement
will describe the subordination provisions and set forth the definition of
"Senior Indebtedness" applicable to such Subordinated Debt Securities or
Junior Subordinated Debt Securities, as the case may be, and such Prospectus
Supplement or the information incorporated or deemed to be incorporated by
reference herein will set forth the approximate amount of such Senior
Indebtedness outstanding as of a recent date. There are no limitations in any
of the Indentures on the issuance or incurrence of indebtedness (including
Senior Indebtedness) by the Company.
The Debt Securities will be obligations exclusively of the Company. The
Company is a holding company, substantially all of whose consolidated assets
are held by its subsidiaries. Accordingly, the cash flow of the Company and
the consequent ability to service its debt, including the Debt Securities, are
dependent upon the results of operations of such subsidiaries and the
distribution of funds by such subsidiaries to the Company. Various statutory
and regulatory restrictions, however, limit directly or indirectly the amount
of dividends the Company's subsidiaries can pay, and also restrict certain
subsidiaries from making investments in or loans to the Company, and similar
restrictions will be applicable to the Bank if it becomes a national bank. In
addition, if the Company becomes a bank holding company, various regulatory
restrictions will limit directly or indirectly the amount of dividends the
Company can pay as well as the repurchase or redemption of its capital stock.
See "The Company--Pending Structural Changes--Dividends" and "--Repurchase or
Redemption of Equity Securities."
In particular, savings associations, such as the Bank, that before and after
a proposed capital distribution meet their regulatory capital requirements,
may make capital distributions during any calendar year equal to the greater
of (i) 100% of net income for the year-to-date plus 50% of the lowest of the
amounts by which the
11
<PAGE>
association's tangible, core or risk-based capital exceeds its regulatory
capital requirement for such capital component, as measured at the beginning
of the calendar year, or (ii) 75% of its net income for the most recent four
quarter period. The Bank currently may pay dividends in accordance with this
general authority. However, an association deemed to be in need of more than
normal supervision by the Office of Thrift Supervision (the "OTS") may have
its dividend authority restricted by the OTS. In general, savings associations
proposing to make any capital distribution need only submit written notice to
the OTS 30 days prior to such distribution. The OTS may object to the
distribution during that 30-day notice period based on safety and soundness
concerns. If the Bank were to become a national bank, the Bank would be
permitted to pay dividends, without prior notice to the Office of the
Comptroller of the Currency, equal to its year-to-date net income plus the
Bank's net income for the prior two fiscal years. The payment of dividends in
excess of this amount would require prior approval of the Office of the
Comptroller of the Currency.
Under Nevada law, a Nevada corporation such as BVAC and LFS-BV, Inc., may
not pay dividends if, after giving effect to such payment: (a) the corporation
would not be able to pay its debts as they become due in the usual course of
business; or (b) except as otherwise specifically allowed by the articles of
incorporation, the corporation's total assets would be less than the sum of
its total liabilities plus the amount that would be needed, if the corporation
were to be dissolved at the time of such payment, to satisfy the preferential
rights upon dissolution of stockholders whose preferential rights are superior
to those receiving the dividend payment. Under California law, a California
corporation, such as BVC, BVCF, Regent and Ultra, may not pay dividends
unless, in general, (i) the payment would not exceed the corporation's
retained earnings or (ii) in the alternative, after giving effect to the
dividend, and subject to certain adjustments and exceptions, (A) the sum of
the corporation's assets (exclusive of goodwill, capitalized research and
development expenses and deferred charges) would not be less than 125% of its
liabilities (not including deferred taxes, deferred income and other deferred
credits) and (B) if the corporation classifies its assets into current and
fixed assets, the current assets of the corporation would be at least equal to
its current liabilities or, if the corporation's average earnings before
income taxes and interest expense for the two preceding fiscal years were less
than its average interest expense for such fiscal years, at least equal to
125% of its current liabilities. In addition, a California corporation is not
permitted to make a dividend or other distribution to its shareholders if it
is, or as a result thereof would be, likely to be unable to meet its
liabilities as they mature. A California corporation must also meet certain
additional financial tests to pay dividends on any junior class or series of
stock if it has outstanding any preferred or other senior class or series of
stock. BVSC, a Delaware corporation, is subject to certain limitations on
dividends under Delaware law.
An institution insured by the Federal Deposit Insurance Corporation (the
"FDIC"), including the Bank, may not pay a dividend if the institution does
not meet its minimum regulatory capital requirements prior to, or as a result
of, such dividend unless it receives prior regulatory approval. This
prohibition will continue to apply to the Bank if the Bank becomes a national
bank.
Because the Company is a holding company, the Debt Securities will be
effectively subordinated to all existing and future liabilities, including
indebtedness, customer deposits, trade payables, guarantees and lease
obligations, of the Company's subsidiaries. Therefore, the Company's rights
and the rights of its creditors, including the holders of the Debt Securities,
to participate in the assets of any subsidiary upon the latter's liquidation
or reorganization will be subject to the prior claims of such subsidiary's
creditors and, if applicable, its depositors, except to the extent that the
Company may itself be a creditor with recognized claims against the
subsidiary, in which case the claims of the Company would still be effectively
subordinate to any security interest in, or mortgages or other liens on, the
assets of such subsidiary and would be subordinate to any indebtedness of such
subsidiary senior to that held by the Company. In that regard, in the event
that a receiver or conservator is appointed for any subsidiary of the Company
whose deposits are insured by the FDIC, such as the Bank (as a savings bank or
a national bank), the Federal Deposit Insurance Act recognizes a priority in
favor of the holders of withdrawable deposits (including the FDIC as subrogee
or transferee) over general creditors. Thus, in the event of a conservatorship
or receivership of such a subsidiary, claims for customer deposits would have
a priority over any claims the Company may itself have as a creditor of such
subsidiary. The Indentures do not
12
<PAGE>
limit the amount of indebtedness or other liabilities that may be incurred by
the Company and its subsidiaries and both the Company and its subsidiaries
retain the ability to incur substantial additional indebtedness and other
financial obligations. See "--Absence of Limitation on Indebtedness and Liens;
Absence of Event Risk Protection."
SUBORDINATED DEBT SECURITIES INTENDED TO QUALIFY AS TIER 2 CAPITAL
Unless otherwise stated in the applicable Prospectus Supplement, it is
currently intended that the Subordinated Debt Securities would qualify, in the
event the Company were to become a bank holding company (which would occur if
the Bank were to convert from a federal savings bank to a national bank or
other commercial bank or if the Company were to acquire control of a
commercial bank), as Tier 2 Capital under the guidelines established by the
Board of Governors of the Federal Reserve System (the "Federal Reserve Board")
for bank holding companies. As described above under "The Company--Pending
Structural Changes," the Bank has filed an application with the Office of the
Comptroller of the Currency to become a national bank. The guidelines set
forth specific criteria for subordinated debt to qualify as Tier 2 Capital.
Among other things, the subordinated debt must: (i) be unsecured; (ii) have a
minimum average maturity of five years; (iii) be subordinated in right of
payment; (iv) not contain provisions permitting the holders thereof to
accelerate payment of principal prior to maturity except in the event of
bankruptcy, insolvency or reorganization of the issuer or a major bank
subsidiary of the issuer; and (v) not contain provisions that would adversely
affect liquidity or unduly restrict management's flexibility to operate the
organization, particularly in times of financial difficulty, such as
limitations on additional secured or senior borrowings, sales or dispositions
of assets or changes in control. See "--Events of Default; Limited Rights of
Acceleration of Subordinated Debt Securities."
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on
behalf of, a depositary (the "Depositary") identified in the Prospectus
Supplement relating to such series. Global Debt Securities may be issued in
either registered or bearer form and in either temporary or permanent form.
Unless and until it is exchanged in whole or in part for individual
certificates evidencing Debt Securities in definitive form represented
thereby, a global Debt Security may not be transferred except as a whole by
the Depositary for such global Debt Security to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee of
such Depositary or by such Depositary or any such nominee to a successor of
such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to a series of
global Debt Securities and certain limitations and restrictions relating to a
series of global Bearer Securities will be described in the Prospectus
Supplement relating to such series.
OUTSTANDING DEBT SECURITIES
In determining whether the holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the relevant Indenture, (i) the
portion of the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding for such purposes shall be that portion of
the principal amount thereof that could be declared to be due and payable upon
a declaration of acceleration thereof pursuant to the terms of such Original
Issue Discount Security as of the date of such determination, (ii) the
principal amount of any Indexed Security that shall be deemed to be
outstanding for such purpose shall be the principal face amount of such
Indexed Security determined on the date of its original issuance, (iii) the
principal amount of a Debt Security denominated in a Currency other than U.S.
dollars shall be the U.S. dollar equivalent, determined on the date of
original issue of such Debt Security, of the principal amount of such Debt
Security and (iv) any Debt Security owned by the Company or any obligor on
such Debt Security or any Affiliate (other than the Trusts) of the Company or
such other obligor shall be deemed not to be outstanding.
13
<PAGE>
REDEMPTION AND REPURCHASE
The Debt Securities of any series may be redeemable at the option of the
Company, may be subject to mandatory redemption pursuant to a sinking fund or
otherwise, or may be subject to repurchase by the Company at the option of the
holders, in each case upon the terms, at the times and at the prices set forth
in the applicable Prospectus Supplement. However, unless otherwise stated in
the applicable Prospectus Supplement, the Company currently does not intend to
issue Subordinated Debt Securities with redemption or repurchase features to
the extent such features would prevent the Subordinated Debt Securities from
qualifying as Tier 2 Capital under the Federal Reserve Board's guidelines. See
"--Subordinated Debt Securities Intended to Qualify as Tier 2 Capital."
CONVERSION AND EXCHANGE
The terms, if any, on which Debt Securities of any series are convertible
into or exchangeable for Common Stock, Preferred Stock, Depositary Shares or
other Debt Securities will be set forth in the applicable Prospectus
Supplement. Such terms may include provisions for conversion or exchange,
either mandatory, at the option of the holders or at the option of the
Company.
ABSENCE OF LIMITATION ON INDEBTEDNESS AND LIENS; ABSENCE OF EVENT RISK
PROTECTION
Unless otherwise provided in the Prospectus Supplement relating to a series
of Debt Securities, the Indentures will not limit the amount of indebtedness,
guarantees or other liabilities that may be incurred by the Company and its
subsidiaries and will not prohibit the Company and its subsidiaries from
creating or assuming liens on their property (including capital stock of the
Bank and other subsidiaries of the Company). Unless otherwise provided in the
Prospectus Supplement relating to a series of Debt Securities, the Indentures
will not require the maintenance of any financial ratios by, or specified
levels of net worth, revenues, income, cash flow or liquidity of, the Company,
and will not contain provisions which would give holders of the Debt
Securities the right to require the Company to repurchase their Debt
Securities in the event of a takeover, recapitalization or similar
restructuring or change in control of the Company.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture provides that the Company shall not, in any transaction or
series of related transactions, consolidate with or merge into any Person or
sell, assign, transfer, lease or otherwise convey all or substantially all its
properties and assets to any Person unless (a) either the Company shall be the
continuing entity, or the successor Person (if other than the Company) is a
corporation which is organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and shall
expressly assume the due and punctual payment of the principal of, premium, if
any, and interest, if any, on all the Debt Securities outstanding under such
Indenture and the performance of the Company's other obligations under such
Indenture and the Debt Securities outstanding thereunder; (b) immediately
after giving effect to such transaction, no Event of Default under such
Indenture, and no event which, after notice or lapse of time or both would
become an Event of Default under such Indenture, shall have happened and be
continuing; and (c) certain other conditions are met.
Upon any such merger, consolidation, sale, assignment, transfer, lease or
conveyance in which the Company is not the continuing corporation, the
successor corporation formed by such consolidation or into which the Company
is merged or to which such sale, assignment, transfer, lease or other
conveyance is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under such Indenture with the same
effect as if such successor corporation had been named as the Company therein
and thereafter (except in the case of a lease) the Company shall be released
from its obligations under such Indenture and the Debt Securities outstanding
thereunder.
14
<PAGE>
EVENTS OF DEFAULT; LIMITED RIGHTS OF ACCELERATION OF SUBORDINATED DEBT
SECURITIES
Unless otherwise specified in the applicable Prospectus Supplement, an Event
of Default with respect to the Debt Securities of any series is defined in the
applicable Indenture as being: (i) default for 30 days in payment of any
interest with respect to any Debt Security of such series; (ii) default in
payment of principal or any premium with respect to any Debt Security of such
series when due upon maturity, redemption, repurchase at the option of the
holder or otherwise; (iii) default in deposit of any sinking fund payment when
due with respect to any Debt Security of such series; (iv) default by the
Company in the performance, or breach, of any other covenant or warranty in
such Indenture (other than a covenant or warranty included therein solely for
the benefit of series of Debt Securities other than that series) or any Debt
Security of such series which shall not have been remedied for a period of 30
days after notice to the Company by the applicable Trustee or the holders of
not less than 25% in aggregate principal amount of the Debt Securities of such
series then outstanding; (v) certain events of bankruptcy, insolvency or
reorganization of the Company or any Major Bank Subsidiary of the Company; or
(vi) any other Event of Default established for the Debt Securities of such
series. No Event of Default with respect to any particular series of Debt
Securities necessarily constitutes an Event of Default with respect to any
other series of Debt Securities. Each Indenture provides that the Trustee
thereunder may withhold notice to the holders of the Debt Securities of any
series outstanding under such Indenture of the occurrence of a default with
respect to the Debt Securities of such series (except a default in payment of
principal, premium, if any, interest, if any, or sinking fund payments, if
any) if the Trustee considers it in the interest of the holders to do so.
Each of the Senior Indenture and the Junior Subordinated Indenture provides
that if an Event of Default with respect to any series of Debt Securities
issued thereunder shall have occurred and be continuing, either the relevant
Trustee or the holders of at least 25% in principal amount of the Debt
Securities of such series then outstanding may declare the principal amount
(or if any Debt Securities of such series are Original Issue Discount
Securities, such lesser amount as may be specified in the terms thereof) of
all the Debt Securities of such series to be due and payable immediately, but
upon certain conditions such declaration and its consequences may be rescinded
and annulled by the holders of a majority in principal amount of the Debt
Securities of such series then outstanding.
Unless otherwise stated in the applicable Prospectus Supplement, no Event of
Default described in clauses (i), (ii), (iii), (iv) or (vi) of the second
preceding paragraph will permit acceleration of the payment of the principal
of the Subordinated Debt Securities. Unless otherwise stated in the applicable
Prospectus Supplement, the Subordinated Indenture will provide that, if an
Event of Default described under clause (v) of the preceding paragraph shall
have occurred and be continuing, either the Trustee or the holders of at least
25% in principal amount of the Subordinated Debt Securities of any series then
outstanding may declare the principal amount (or if any Subordinated Debt
Securities of such series are Original Issue Discount Securities, such lesser
amount as may be specified in the terms thereof) of all the Subordinated Debt
Securities of such series to be due and payable immediately, but upon certain
conditions such declaration and its consequences may be rescinded and annulled
by the holders of a majority in principal amount of the Subordinated Debt
Securities of such series then outstanding.
As described in the preceding paragraph, unless otherwise stated in the
applicable Prospectus Supplement, there will be no right of acceleration with
respect to the Subordinated Debt Securities of any series in the case of,
among other things, (i) a default in the payment of the principal of, or
premium, if any, or interest, if any, on, or sinking fund payments, if any,
with respect to, the Subordinated Debt Securities of such series or (ii) a
default in the performance of any other covenant of the Company in the
Subordinated Indenture or the Subordinated Debt Securities of such series. In
the case of a default in the payment of principal of, or premium, if any, or
interest, if any, on any Subordinated Debt Securities of any series, the
Subordinated Trustee, subject to certain limitations and conditions, may
institute a judicial proceeding for the collection thereof. The limitation on
acceleration described above is intended, in the event the Company were to
become a bank holding company (which would occur if the Bank were to convert
from a federal savings bank to a national bank or other commercial bank or if
the Company were to acquire control of a commercial bank), to permit the
Subordinated Debt Securities to qualify as Tier 2 Capital under the guidelines
established by the Federal Reserve Board for bank holding companies. As
described above under "The Company--Pending Structural Changes," the Bank has
filed an application with the Office of the Comptroller of the Currency to
become a national bank. See "--Subordinated Debt Securities Intended to
Qualify as Tier 2 Capital."
15
<PAGE>
Subject to the provisions of Trust Indenture Act requiring each Trustee,
during the continuance of an Event of Default under the relevant Indenture, to
act with the requisite standard of care, a Trustee is under no obligation to
exercise any of its rights or powers under the relevant Indenture at the
request or direction of any of the holders of Debt Securities of any series
unless such holders have offered such Trustee reasonable indemnity. Subject to
the foregoing, holders of a majority in principal amount of the then
outstanding Debt Securities of any series issued under an Indenture shall have
the right, subject to certain limitations, to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
under such Indenture with respect to such series. Each Indenture requires the
annual filing by the Company with the relevant Trustee of a certificate as to
whether or not the Company is in default under the terms of such Indenture.
Notwithstanding any other provision of the Indentures, the holder of any
Debt Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and interest, if any,
on such Debt Security on the respective due dates therefor (as the same may be
extended, if applicable, in accordance with the terms of such Debt Security)
and to institute suit for enforcement of any such payment, and such right
shall not be impaired without the consent of such holder. In addition, in the
case of a Junior Subordinated Debt Security issued to a Trust, if an Event of
Default has occurred and is continuing and such Event of Default is
attributable to the failure by the Company to pay the principal of or premium,
if any, or interest, if any, on such Junior Subordinated Debt Security, then a
holder of Trust Preferred Securities of such Trust may directly institute a
proceeding against the Company for payment.
MODIFICATION, WAIVERS AND MEETINGS
Each Indenture contains provisions permitting the Company and the Trustee
thereunder, with the consent of the holders of a majority in principal amount
of the outstanding Debt Securities of each series issued under such Indenture
and affected by a modification or amendment, to modify or amend any of the
provisions of such Indenture or of the Debt Securities of such series or the
rights of the holders of the Debt Securities of such series under such
Indenture, provided that no such modification or amendment shall, among other
things, (i) change the stated maturity of the principal of, or premium, if
any, or any installment of interest, if any, on any Debt Securities issued
under such Indenture or reduce the principal amount thereof or any premium
thereon, or reduce the rate of interest thereon, or reduce the amount of
principal of any Original Issue Discount Securities that would be due and
payable upon an acceleration of the maturity thereof, or change any place
where, or the Currency in which, any Debt Securities issued under such
Indenture are payable, or impair the holder's right to institute suit to
enforce the payment of any such Debt Securities on or after the stated
maturity thereof (as the same may be extended in accordance with the terms of
such Debt Securities), or make any change that adversely affects the right, if
any, to convert or exchange such Debt Securities for other securities in
accordance with their terms, or (ii) reduce the aforesaid percentage of Debt
Securities of any series issued under such Indenture, the consent of the
holders of which is required for any such modification or amendment or the
consent of whose holders is required for any waiver (of compliance with
certain provisions of such Indenture or certain defaults thereunder and their
consequences) or reduce the requirements for a quorum or voting at a meeting
of holders of such Debt Securities or (iii) solely in the case of a series of
Subordinated Debt Securities or Junior Subordinated Debt Securities, modify
any of the subordination provisions applicable thereto or the definition of
Senior Indebtedness applicable thereto in a manner adverse to the holders of
such Subordinated Debt Securities or Junior Subordinated Debt Securities, as
the case may be, without in each such case obtaining the consent of the holder
of each outstanding Debt Security issued under such Indenture so affected.
If a Trust or the Property Trustee of such Trust holds a series of Junior
Subordinated Debt Securities, no such amendment, modification or waiver which
requires approval of holders of a certain percentage in principal amount of
the outstanding Junior Subordinated Debt Securities of such series shall be
effective as to such series of Junior Subordinated Debt Securities, without
the approval of the holders of at least the same percentage of aggregate liq-
uidation amount of outstanding Trust Securities of such Trust.
Each Indenture also contains provisions permitting the Company and the
relevant Trustee, without the consent of the holders of any Debt Securities
issued thereunder, to modify or amend such Indenture in order to,
16
<PAGE>
among other things, (a) add to the Events of Default or the covenants of the
Company for the benefit of the holders of all or any series of Debt Securities
issued under such Indenture; (b) to add or change any provisions of such
Indenture to facilitate the issuance of Bearer Securities; (c) to establish
the form or terms of Debt Securities of any series and any related coupons;
(d) to cure any ambiguity or correct or supplement any provision therein which
may be defective or inconsistent with other provisions therein, or to make any
other provisions with respect to matters or questions arising under such
Indenture which shall not adversely affect the interests of the holders of any
series of Debt Securities issued thereunder in any material respect; or (e) to
amend or supplement any provision contained in such Indenture, provided that
such amendment or supplement does not apply to any outstanding Debt Securities
issued prior to the date of such amendment or supplement and entitled to the
benefits of such provision.
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of any series may waive compliance by the Company with certain
restrictive provisions of the relevant Indenture, including a restrictive
covenant set forth therein and such other restrictive covenants, if any, as
may be set forth in the applicable Prospectus Supplement. The Holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
any series may, on behalf of all holders of Debt Securities of that series,
waive any past default under the applicable Indenture with respect to Debt
Securities of that series and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest, if any, on any
Debt Securities of such series or in respect of a covenant or provision which
cannot be modified or amended without the consent of the holder of each
outstanding Debt Securities of such series affected.
Each Indenture contains provisions for convening meetings of the holders of
Debt Securities of a series issued thereunder. A meeting may be called at any
time by the relevant Trustee, and also, upon request, by the Company or the
holders of at least 10% in principal amount of the outstanding Debt Securities
of such series, in any such case upon notice given in accordance with the
provisions of such Indenture. Except for any consent which must be given by
the holder of each outstanding Debt Security affected thereby, as described
above, any resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum (as described below) is present may be adopted by
the affirmative vote of the holders of a majority in principal amount of the
outstanding Debt Securities of that series; provided, however, that any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which may be made, given or taken by
the holders of a specified percentage, which is more or less than a majority,
in principal amount of the outstanding Debt Securities of a series may be
adopted at a meeting or adjourned meeting duly reconvened at which a quorum is
present by the affirmative vote of the holders of such specified percentage in
principal amount of the outstanding Debt Securities of that series. Any
resolution passed or decision taken at any meeting of holders of Debt
Securities of any series duly held in accordance with the relevant Indenture
will be binding on all holders of Debt Securities of that series and the
related coupons. The quorum at any meeting called to adopt a resolution, and
at any reconvened meeting, will be persons holding or representing a majority
in principal amount of the outstanding Debt Securities of a series, subject to
certain exceptions.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Upon the direction of the Company, either Indenture shall cease to be of
further effect with respect to any series of Debt Securities issued thereunder
specified by the Company (subject to the survival of certain provisions
thereof, including the obligation, if any, to pay Additional Amounts to the
extent described below) when (i) either (A) all outstanding Debt Securities of
such series and, in the case of Bearer Securities, all coupons appertaining
thereto, have been delivered to the relevant Trustee for cancellation (subject
to certain exceptions) or (B) all Debt Securities of such series and, if
applicable, any coupons appertaining thereto, have become due and payable or
will become due and payable at their stated maturity within one year or are to
be called for redemption within one year and the Company has deposited with
the Trustee, in trust, funds in U.S. dollars or in such Foreign Currency in
which such Debt Securities are payable in an amount sufficient to pay the
entire indebtedness on such Debt Securities in respect of principal (and
premium, if any) and interest, if any, (and, to the extent that (x) the Debt
Securities of such series provide for the payment of Additional Amounts upon
the occurrence of certain events of taxation, assessment or governmental
charge with respect to payments on such Debt Securities and (y) the amount
17
<PAGE>
of any such Additional Amounts is at the time of deposit reasonably
determinable by the Company (in the exercise of its sole discretion), any such
Additional Amounts) to the date of such deposit (if such Debt Securities have
become due and payable) or to the Maturity thereof, as the case may be, (ii)
the Company has paid all other sums payable under the Indenture with respect
to the Debt Securities of such series, and (iii) certain other conditions are
met. If the Debt Securities of any such series provide for the payment of
Additional Amounts, the Company will remain obligated, following such deposit,
to pay Additional Amounts on such Debt Securities to the extent that the
amount thereof exceeds the amount deposited in respect of such Additional
Amounts as aforesaid.
Unless otherwise provided in the applicable Prospectus Supplement, the
Company may elect with respect to any series of Debt Securities either (a) to
defease and be discharged from any and all obligations with respect to such
Debt Securities (except for, among other things, the obligation to pay
Additional Amounts, if any, upon the occurrence of certain events of taxation,
assessment or governmental charge with respect to payments on such Debt
Securities to the extent that the amount thereof exceeds the amount deposited
in respect of such Additional Amounts as provided below, and the obligations
to register the transfer or exchange of such Debt Securities, to replace
temporary or mutilated, destroyed, lost or stolen Debt Securities, to maintain
an office or agency in respect of such Debt Securities, to hold moneys for
payment in trust, and, if applicable, to exchange or convert such Debt
Securities into other securities in accordance with their terms)
("defeasance"), or (b) to be released from its obligations with respect to
such Debt Securities under a restrictive covenant set forth in the relevant
Indenture and such other restrictive covenants, if any, as may be set forth in
the applicable Prospectus Supplement, and any omission to comply with such
obligations shall not constitute a default or an Event of Default with respect
to the Debt Securities of such series ("covenant defeasance"), in either case
upon the irrevocable deposit with the relevant Trustee (or other qualifying
trustee), in trust for such purpose, of an amount, in U.S. dollars or in such
Foreign Currency in which such Debt Securities are payable at Stated Maturity
or, if applicable, upon redemption, and/or Government Obligations (as defined
in the relevant Indenture) which through the payment of principal and interest
in accordance with their terms will provide money, in an amount sufficient to
pay the principal of and any premium and any interest on (and, to the extent
that (x) the Debt Securities of such series provide for the payment of
Additional Amounts and (y) the amount of any such Additional Amounts is at the
time of deposit reasonably determinable by the Company (in the exercise of its
sole discretion), any such Additional Amounts with respect to) such Debt
Securities, and any mandatory sinking fund or analogous payments thereon, on
the scheduled due dates therefor or the applicable redemption date, as the
case may be.
Unless otherwise stated in the applicable Prospectus Supplement, such
defeasance or covenant defeasance shall only be effective if, among other
things, (i) it shall not result in a breach or violation of, or constitute a
default under, the relevant Indenture or any other material agreement or
instrument to which the Company or any Major Bank Subsidiary is a party or is
bound, (ii) the Company has delivered to the relevant Trustee an opinion of
counsel (as specified in the relevant Indenture) to the effect that the
holders of such Debt Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance or covenant
defeasance, as the case may be, and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred, (iii) if
the cash and Government Obligations deposited are sufficient to pay the
outstanding Debt Securities of such series provided such Debt Securities are
redeemed on a particular redemption date, the Company shall have given the
applicable Trustee irrevocable instructions to redeem such Debt Securities on
such date, and (iv) in the case of Subordinated Debt Securities it is effected
during the last year prior to the final stated maturity date of such Debt
Securities. It shall also be a condition to the effectiveness of such
defeasance or covenant defeasance that no Event of Default or event which with
notice or lapse of time or both would become an Event of Default with respect
to Debt Securities of such series shall have occurred and been continuing on
the date of such deposit into trust and, solely in the case of defeasance, no
Event of Default described in clause (v) of the first paragraph under "--
Events of Default" above shall have occurred and be continuing during the
period ending on the 91st day after the date of, such deposit into trust.
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any
series, (a) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to the
18
<PAGE>
applicable Indenture or the terms of such Debt Security to receive payment in
a Currency other than that in which such deposit has been made in respect of
such Debt Security, or (b) a Conversion Event (as defined below) occurs in
respect of the Foreign Currency in which such deposit has been made, the
indebtedness represented by such Debt Security shall be deemed to have been,
and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest, if any, on such Debt Security
as such Debt Security becomes due out of the proceeds yielded by converting
the amount so deposited in respect of such Debt Security into the Currency in
which such Debt Security becomes payable as a result of such election or such
Conversion Event based on (x) in the case of payments made pursuant to clause
(a) above, the applicable market exchange rate for such Foreign Currency in
effect on the second business day prior to such payment date, or (y) with
respect to a Conversion Event, the applicable market exchange rate for such
Foreign Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
"Conversion Event" means the cessation of use of (i) a Foreign Currency both
by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the settlement
of transactions by public institutions of or within the European Union or
(iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established.
In the event the Company effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable because
of the occurrence of any Event of Default other than an Event of Default with
respect to a covenant as to which there has been covenant defeasance, the
amount of monies and/or Government Obligations deposited with the applicable
Trustee to effect such covenant defeasance may not be sufficient to pay
amounts due on such Debt Securities at the time of any acceleration resulting
from such Event of Default. However, the Company would remain liable to make
payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions, if
any, permitting or restricting such defeasance or covenant defeasance with
respect to the Debt Securities of a particular series.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
REGARDING THE TRUSTEES
The Trust Indenture Act contains limitations on the rights of a trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases or to realize on certain property received by it in respect of
any such claims, as security or otherwise. Each Trustee is permitted to engage
in other transactions with the Company and its subsidiaries from time to time,
provided that if such Trustee acquires any conflicting interest it must
eliminate such conflict upon the occurrence of an Event of Default under the
relevant Indenture, or else resign.
19
<PAGE>
DESCRIPTION OF PREFERRED STOCK
The Company may issue shares of its Preferred Stock, in one or more series,
either separately, or together with, or upon the conversion of or in exchange
for, other Securities. The summary of certain provisions of the Preferred
Stock set forth below and the summary of certain terms of a particular series
of Preferred Stock set forth in the applicable Prospectus Supplement do not
purport to be complete and are subject to and qualified in their entirety by
reference to all of the provisions of the Company's restated certificate of
incorporation, as amended (the "Amended Certificate of Incorporation"), and
the Company's by-laws (the "By-laws"), which have been filed or incorporated
by reference as exhibits to the Registration Statement, and the form of
certificate of designations relating to such series of Preferred Stock which
will be filed as an exhibit to or incorporated by reference in the
Registration Statement, all of which are incorporated herein by reference.
The following description of Preferred Stock sets forth certain general
terms and provisions of the series of Preferred Stock to which any Prospectus
Supplement may relate. Certain other terms of any particular series of
Preferred Stock, including Preferred Stock to be represented by Depositary
Shares, will be described in the applicable Prospectus Supplement. To the
extent that any particular terms of any Preferred Stock described in a
Prospectus Supplement differ from any of the terms described herein, then such
terms described herein shall be deemed to have been superseded by such
Prospectus Supplement.
GENERAL
Under the Amended Certificate of Incorporation, the Company is authorized to
issue up to 7,000,000 shares of Preferred Stock, par value $.01 per share,
which may be issued from time to time in one or more series. Subject to
limitations prescribed by Delaware law and the Amended Certificate of
Incorporation, the Board of Directors is authorized to fix the number of
shares constituting each series of Preferred Stock and the rights and
preferences thereof.
Reference is made to the applicable Prospectus Supplement relating to the
series of Preferred Stock offered thereby (the "Offered Preferred Stock") for
specific terms, including (where applicable): (1) the title of such Offered
Preferred Stock; (2) the number of shares of such Offered Preferred Stock
offered, the liquidation preference per share and the initial public offering
price of such Offered Preferred Stock; (3) the dividend rate or method of
calculation thereof and the dividend payment dates or periods; (4) the date
from which dividends on such Offered Preferred Stock shall accrue and whether
dividends on such Offered Preferred Stock will be cumulative; (5) the
procedures for any auction or remarketing, if any, of such Offered Preferred
Stock; (6) the provisions for a sinking fund, if any, for such Offered
Preferred Stock; (7) the provisions for redemption or repurchase, if
applicable, of such Offered Preferred Stock; (8) any listing of such Offered
Preferred Stock on any securities exchange; (9) the terms and conditions, if
any, upon which such Offered Preferred Stock will be convertible into or
exchangeable for other Securities; (10) whether interests in such Offered
Preferred Stock will be represented by Depositary Shares; (11) the preferences
of such Offered Preferred Stock as to dividends and upon liquidation,
dissolution or winding up of the Company; and (12) any other specific terms of
such Offered Preferred Stock.
RANKING
Unless otherwise specified in the applicable Prospectus Supplement, any
series of Offered Preferred Stock offered thereby will rank, with respect to
both the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Company, (i) senior to the Common Stock and
(ii) on a parity with shares of any other outstanding series of Offered
Preferred Stock.
DIVIDEND, REPURCHASE AND REDEMPTION RESTRICTIONS
Certain of the Company's debt instruments contain restrictive covenants that
could limit the amount of dividends payable by the Company or the redemption
or repurchase of capital stock by the Company. In the
20
<PAGE>
event of a deterioration in the financial condition or results of operations
of the Company, such covenants could limit or prohibit the payment of
dividends on, or the repurchase or redemption of, Offered Preferred Stock. In
addition, the Company is a holding company substantially all of whose
consolidated assets are held by its subsidiaries, and the cash flow of the
Company and the consequent ability to pay dividends on and to redeem or
repurchase its securities, including Offered Preferred Stock, are dependent
upon the results of operations of such subsidiaries and the distribution of
funds by such subsidiaries to the Company. In addition, if the Company were to
become a bank holding company, various regulatory restrictions would limit
directly or indirectly the amount of dividends the Company could pay as well
as the repurchase or redemption of its capital stock. See "The Company--
Pending Structural Changes--Dividends," "The Company--Pending Structural
Changes-- Repurchase or Redemption of Equity Securities" and "Description of
Debt Securities--Ranking of Debt Securities; Holding Company Structure."
DIVIDENDS
Subject to the preferential rights of any capital stock of the Company
ranking prior to any series of the Offered Preferred Stock as to dividends,
holders of shares of such Offered Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of assets of the Company legally available therefor, dividends at such
rates and on such dates as will be set forth in, or as are determined by the
method described in, the applicable Prospectus Supplement. Such rates may be
fixed or variable or both. If variable, the formula used for determining the
dividend rate for each dividend period will be specified in the applicable
Prospectus Supplement. Each such dividend shall be payable to holders of
record as they appear on the stock transfer books of the Company on such
record dates as shall be fixed by the Board of Directors of the Company.
Dividends may be paid in the form of cash, Preferred Stock (of the same or a
different series), or other securities or property, in each case as specified
in the applicable Prospectus Supplement.
Dividends on any series of the Offered Preferred Stock may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement.
Dividends, if cumulative, will be cumulative from and after the date set forth
in the applicable Prospectus Supplement. If the Board of Directors of the
Company fails to declare a dividend payable on a dividend payment date on any
series of the Offered Preferred Stock for which dividends are non-cumulative,
then the holders of such series of the Offered Preferred Stock will have no
right to receive a dividend in respect of the dividend period ending on such
dividend payment date, and the Company will have no obligation to pay the
dividend accrued for such period, whether or not dividends on such series are
declared payable on any future dividend payment date.
No full dividends will be declared or paid or set aside for payment on any
Preferred Stock of the Company ranking, as to dividends, on a parity with or
junior to any outstanding series of Offered Preferred Stock for any period
unless full dividends on such series of Offered Preferred Stock for all past
dividend periods (including accumulated dividends on any such series of
Offered Preferred Stock on which dividends are cumulative) have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set aside for payment. When dividends are not paid in full
on any series of Offered Preferred Stock and any other Preferred Stock ranking
on a parity as to dividends with such series of Offered Preferred Stock, all
dividends declared or paid upon shares of Offered Preferred Stock of such
series and any other Preferred Stock ranking on a parity as to dividends with
the Offered Preferred Stock of such series shall be declared and paid pro rata
so that the amount of dividends declared and paid per share on the Offered
Preferred Stock of such series and such other Preferred Stock shall in all
cases bear to each other the same ratio that accrued dividends per share
(which in the case of non-cumulative Preferred Stock shall not include any
accumulation in respect of unpaid dividends for prior dividend periods) on
shares of such series of Offered Preferred Stock and such other Preferred
Stock bear to each other. Except as provided in the preceding sentence, unless
full dividends on all outstanding shares of any series of Offered Preferred
Stock for all past dividend periods (including accumulated dividends on any
such series on which dividends are cumulative) have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set aside for payment, no dividends (other than dividends or distributions
paid in shares of, or options, warrants or rights to subscribe for or purchase
shares of, Common Stock or any other stock of the
21
<PAGE>
Company ranking junior to the Offered Preferred Stock of such series as to
dividends and as to distribution of assets upon liquidation, dissolution or
winding up of the Company) shall be declared or paid or set aside for payment
or any other distribution declared or made upon the Common Stock or any other
stock of the Company ranking junior to or on a parity with the Offered
Preferred Stock of such series as to dividends or distribution of assets upon
liquidation, dissolution or winding up of the Company, nor may any Common
Stock or any other stock of the Company ranking junior to or on a parity with
the Offered Preferred Stock of such series as to dividends or distribution of
assets upon liquidation, dissolution or winding up of the Company be redeemed,
purchased or otherwise acquired for any consideration (and no moneys shall be
paid to or made available for a sinking fund for the redemption of any shares
of any such junior of parity stock) by the Company (except by conversion into
or exchange for stock of the Company ranking junior to the Offered Preferred
Stock of such series as to dividends and as to distribution of assets upon
liquidation, dissolution or winding up of the Company).
Holders of shares of any series of Offered Preferred Stock shall not be
entitled to any dividends, whether payable in cash, securities or other
property, in excess of full cumulative (if applicable) dividends on such
series. No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend or payments which may be in arrears.
The Company may be prohibited from paying dividends on Offered Preferred
Stock of any series as a result of certain dividend restrictions. See "--
Dividend, Repurchase and Redemption Restrictions" above.
REDEMPTION AND REPURCHASE
The shares of Offered Preferred Stock of any series may be redeemable at the
option of the Company, may be subject to mandatory redemption pursuant to a
sinking fund or otherwise, or may be subject to repurchase by the Company at
the option of the holders, in each case upon the terms, at the times and at
the prices set forth in the applicable Prospectus Supplement. Offered
Preferred Stock redeemed by the Company will be restored to the status of
authorized but unissued shares of Preferred Stock.
The Prospectus Supplement relating to a series of Offered Preferred Stock
which is subject to mandatory redemption will specify the number of shares of
such series which shall be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends thereon
(including accumulated dividends on any such series on which dividends are
cumulative) to the date fixed for redemption. The redemption price may be
payable in cash, securities or other property, as specified in the Prospectus
Supplement relating to such series of Offered Preferred Stock.
If fewer than all of the outstanding shares of any series of Offered
Preferred Stock are to be redeemed, the shares to be redeemed will be
determined pro rata, by lot or by any other method deemed equitable by the
Company.
In the event that full cumulative dividends on any series of Offered
Preferred Stock (including accumulated dividends on any such series on which
dividends are cumulative) have not been declared and paid or declared and a
sum sufficient for the payment thereof set apart for payment, the Company
shall not redeem, repurchase or otherwise acquire any shares of such series of
Offered Preferred Stock except by conversion into or exchange for capital
stock of the Company ranking junior to the Offered Preferred Stock of such
series as to dividends and as to distributions upon liquidation, dissolution
or winding up of the Company, or except pursuant to a purchase or exchange
offer made on the same terms to all holders of such series of Offered
Preferred Stock.
Notice of redemption shall be given by mailing the same to each record
holder of the shares to be redeemed, not less than 30 nor more than 60 days
prior to the date fixed for redemption thereof, to the respective addresses of
such holders as the same shall appear in the stock registry of the Company.
Each such notice shall state: (i) the redemption date; (ii) the number of
shares and series of Offered Preferred Stock to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such Offered
Preferred Stock are to be
22
<PAGE>
surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date; and (vi)
the date upon which the holder's conversion rights as to such shares, if any,
shall terminate. If fewer than all shares of any series of the Preferred Stock
held by any holder are to be redeemed, the notice mailed to such holder shall
also specify the number of shares to be redeemed from such holder.
If a notice of redemption has been given, from and after the redemption date
for the shares of Offered Preferred Stock called for redemption (unless the
Company shall default in providing money for the payment of the redemption
price of the shares so called for redemption plus, if applicable, accrued and
unpaid dividends), dividends on the shares of Offered Preferred Stock so
called for redemption shall cease to accrue and such shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as
shareholders of the Company shall cease, except the right to receive the
redemption price plus, if applicable, accrued and unpaid dividends upon
surrender of the certificates representing the shares to be so redeemed
(properly endorsed or assigned for transfer, if the Company shall so require)
in accordance with such notice. If fewer than all of the shares represented by
any such certificates are redeemed, a new certificate shall be issued
representing the unredeemed shares.
The Company may be prohibited from redeeming or repurchasing Offered
Preferred Stock of any series as the result of certain dividend restrictions.
See "--Dividend, Repurchase and Redemption Restrictions" above.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Company, and after payment of all amounts due upon liquidation,
dissolution or winding up to holders of any capital stock of the Company
ranking prior to the Offered Preferred Stock of any series as to the
distribution of assets upon liquidation, dissolution or winding up, and
subject to the rights of holders of any capital stock of the Company ranking
on a parity with the shares of Offered Preferred Stock of such series as to
distribution of assets upon liquidation, dissolution or winding up of the
Company, the holders of shares of Offered Preferred Stock of such series shall
be entitled to receive, out of assets of the Company legally available
therefor and before any distribution or payment shall be made to the holders
of any Common Stock or any other class or series of capital stock of the
Company ranking junior to the Offered Preferred Stock of such series as to
distribution of assets upon liquidation, dissolution or winding up of the
Company, liquidating distributions in the amount of the liquidation preference
per share set forth in the applicable Prospectus Supplement, plus accrued and
unpaid dividends (including accumulated dividends if dividends on such series
of Offered Preferred Stock are cumulative). After payment of the full amount
of the liquidating distributions to which they are entitled, the holders of
Offered Preferred Stock of such series will have no right or claim to any of
the remaining assets of the Company. In the event that, upon any such
voluntary or involuntary liquidation, dissolution or winding up, the legally
available assets of the Company are insufficient to pay the amount of the
liquidating distributions on all outstanding shares of Offered Preferred Stock
of any series and the corresponding amounts payable on all shares of other
capital stock of the Company ranking on a parity with the Offered Preferred
Stock of such series in the distribution of assets upon liquidation,
dissolution or winding up, the holders of the Offered Preferred Stock of such
series and of such other capital stock shall share ratably in any such
distribution of assets in proportion to the full liquidating distributions to
which they would otherwise be respectively entitled.
For such purposes, the consolidation or merger of the Company with or into
any other person, or the sale, lease, transfer or conveyance of all or
substantially all or any portion of the property or business of the Company,
shall not be deemed to constitute a liquidation, dissolution or winding up of
the Company.
VOTING RIGHTS
Holders of Offered Preferred Stock will not have any voting rights, except
as set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement. In the event that the
Company issues a series of Offered Preferred Stock with voting rights or the
Offered Preferred Stock of any
23
<PAGE>
series is entitled pursuant to applicable law to vote on any matter, then,
unless otherwise specified in the Prospectus Supplement relating to such
series, each share of such series will be entitled to one vote on matters on
which holders of such shares are entitled to vote. However, as more fully
described under "Description of Depositary Shares," if the Company elects to
provide for the issuance of Depositary Shares representing fractional
interests in shares of any such series of Offered Preferred Stock, the holder
of any such Depositary Share will, in effect and subject to certain
limitations and conditions, be entitled to such fraction of a vote, rather
than a full vote. In the case of any series of Offered Preferred Stock having
one vote per share on matters on which holders of such series are entitled to
vote, the voting power of such series on matters on which holders of such
series and holders of any other series of Preferred Stock or other capital
stock of the Company are entitled to vote as a single class will depend on the
number of shares in such series, not the aggregate stated value, liquidation
preference or initial offering price of the shares of such series.
So long as any shares of Offered Preferred Stock of any series remain
outstanding, and except as otherwise set forth in the applicable Prospectus
Supplement or except as otherwise required by applicable law, the Company will
not, without the affirmative vote or consent of the holders of at least a
majority of the shares of such series of Offered Preferred Stock outstanding
at the time (voting separately as a class), given in person or by proxy,
either in writing or at a meeting, (i) authorize, create or issue, or increase
the authorized or issued amount of, any class or series of capital stock
ranking prior to such series of Offered Preferred Stock with respect to
payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up or reclassify any authorized capital stock of the
Company into any such shares, or create, authorize or issue any obligation or
security convertible into, exercisable or exchangeable for or evidencing the
right to purchase, any such shares; or (ii) amend, alter or repeal the
provisions of the Amended Certificate of Incorporation (including the
certificate of designations for such series of Offered Preferred Stock),
whether by merger, consolidation or otherwise, so as to materially and
adversely affect any right, preference, privilege or voting power of such
series of Offered Preferred Stock; provided, however, that (a) any increase in
the amount of the authorized Preferred Stock or authorized Common Stock or (b)
the creation or issuance of any other class or series of capital stock or any
other series of Preferred Stock, or any increase in the number of authorized
shares of any other class or series of capital stock or any other series of
Preferred Stock ranking, in each case described in this clause (b), on a
parity with or junior to the Preferred Stock of such series with respect to
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and adversely
affect such rights, preferences or privileges.
None of the foregoing voting provisions will apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected or occur, all outstanding shares of the relevant series of
Offered Preferred Stock shall have been redeemed or called for redemption upon
proper notice and sufficient funds shall have been deposited in trust to
effect such redemption.
Under Delaware law, notwithstanding anything to the contrary set forth
above, holders of all outstanding shares of Preferred Stock will be entitled
to vote as a class upon a proposed amendment to the Amended Certificate of
Incorporation if the amendment would increase or decrease the aggregate number
of authorized shares of such class, increase or decrease the par value of the
shares of such class, or alter or change the powers, preferences or rights of
the shares of such class so as to affect them adversely. However, if any such
proposed amendment would change the powers, preferences or rights of one or
more series of Preferred Stock so as to affect them adversely, but shall not
affect all series of Preferred Stock, then only the shares of the series so
affected shall be considered a separate class for such purposes. Any such
amendment requires the vote of a majority of the shares entitled to vote
thereon, voting as a class.
CONVERSION AND EXCHANGE RIGHTS
The terms, if any, upon which shares of any series of Offered Preferred
Stock are convertible into or exchangeable for the Common Stock, another
series of Preferred Stock or other Securities will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms may include
provisions for conversion or exchange, either mandatory, at the option of the
holders or at the option of the Company.
24
<PAGE>
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the shares of any series of Offered
Preferred Stock will be named in the applicable Prospectus Supplement.
DESCRIPTION OF DEPOSITARY SHARES
The Company may offer Depositary Shares (either separately or together with
other Securities) representing fractional interests in shares of Preferred
Stock of any series. In connection with the issuance of any Depositary Shares,
the Company will enter into a deposit agreement (a "Deposit Agreement") with a
bank or trust company, as depositary (the "Preferred Stock Depositary"), which
will be named in the applicable Prospectus Supplement. Depositary Shares will
be evidenced by depositary receipts (the "Depositary Receipts") issued
pursuant to the related Deposit Agreement. The summary of certain provisions
of the Depositary Shares and the Deposit Agreement set forth below and the
summary of certain terms of a particular issue of Depositary Shares and the
related Deposit Agreement set forth in the applicable Prospectus Supplement do
not purport to be complete and are subject to and qualified in their entirety
by reference to all the provisions of the form of Deposit Agreement, together
with the form of related Depositary Receipt, which has been or will be filed
as an exhibit to or incorporated by reference in the Registration Statement,
all of which are incorporated herein by reference.
The following description of Depositary Shares sets forth certain general
terms and provisions of the Depositary Shares and the related Deposit
Agreement to which any Prospectus Supplement may relate. Certain other terms
of any such Depositary Shares and the related Deposit Agreement will be
described in the applicable Prospectus Supplement. To the extent that any
particular terms of the Depositary Shares or the related Deposit Agreement
described in a Prospectus Supplement differ from any of the terms described
herein, then such terms described herein shall be deemed to have been
superseded by such Prospectus Supplement.
GENERAL
The Company may provide for the issuance by the Preferred Stock Depositary
of Depositary Receipts evidencing the related Depositary Shares, each of which
Depositary Shares in turn will represent a fractional interest (which will be
specified in the applicable Prospectus Supplement) in one share of a series of
Preferred Stock. Shares of Preferred Stock of any series represented by
Depositary Shares will be deposited under a separate Deposit Agreement.
Subject to the terms of the Deposit Agreement, each owner of a Depositary
Receipt will be entitled, in proportion to the fraction of a share of
Preferred Stock represented by the related Depositary Share, to all the
rights, preferences and privileges of, and will be subject to all of the
limitations and restrictions on, the Preferred Stock represented thereby
(including, if applicable and subject to certain matters discussed below,
dividend, voting, conversion, exchange, redemption and liquidation rights).
Depositary Shares may be issued in respect of shares of the Preferred Stock
of any series. Immediately following the issuance of any such shares of
Preferred Stock by the Company, the Company will deposit such shares of
Preferred Stock with the relevant Preferred Stock Depositary and will cause
the Preferred Stock Depositary to issue, on behalf of the Company, the related
Depositary Receipts.
Reference is made to the applicable Prospectus Supplement relating to the
Depositary Shares offered thereby for specific terms, including (where
applicable): (1) the terms of the series of Preferred Stock deposited by the
Company under the related Deposit Agreement; (2) the number of such Depositary
Shares and the fraction of one share of such Preferred Stock represented by
one such Depositary Share; (3) whether such Depositary Shares will be listed
on any securities exchange; (4) whether such Depositary Shares will be sold
with any other Securities and, if so, the amount and terms thereof; and (5)
any other specific terms of such Depositary Shares and the related Deposit
Agreement.
Depositary Receipts may be surrendered for transfer or exchange for new
Depositary Receipts of different authorized denominations at any office or
agency of the relevant Preferred Stock Depositary maintained for such
25
<PAGE>
purpose, subject to the terms of the related Deposit Agreement. Unless
otherwise specified in the applicable Prospectus Supplement, Depositary
Receipts will be issued in denominations evidencing any whole number of
Depositary Shares. No service charge will be made for any permitted transfer
or exchange of Depositary Receipts, but the Company or the Preferred Stock
Depositary may require payment of any tax or other governmental charge payable
in connection therewith.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received in respect of the related Preferred Stock to the
record holders of Depositary Receipts in proportion, insofar as possible, to
the number of Depositary Shares evidenced by the Depositary Receipts owned by
such holders on the relevant record date. The Preferred Stock Depositary will
distribute only such amount, however, as can be distributed without
attributing to any holder of Depositary Receipts a fraction of one cent, and
any balance not so distributed will be added to and treated as part of the
next sum, if any, received by the Preferred Stock Depositary for distribution
to the record holders of Depositary Receipts.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto in proportion, insofar as possible, to
the number of Depositary Shares evidenced by the Depositary Receipts owned by
such holders on the relevant record date, unless the Preferred Stock
Depositary determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depositary may, with the approval of the
Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including sale (public or private) of
such property and distribution of the net proceeds from such sale to such
holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
the related series of Preferred Stock will be made available to holders of
Depositary Receipts.
The amount distributed in any of the foregoing cases will be reduced by any
amount required to be withheld by the Company or the Preferred Stock
Depositary on the account of taxes.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of the Depositary Receipts at an office or agency of the
Preferred Stock Depositary maintained for such purpose (unless the related
shares of Preferred Stock have previously been called for redemption), the
holder thereof will be entitled to delivery, at such office or agency, to or
upon such holder's order, of the number of whole shares of the related series
of Preferred Stock and any money or other property represented by the
Depositary Shares evidenced by such Depositary Receipts. Shares of Preferred
Stock so withdrawn, however, may not be redeposited. If the Depositary
Receipts delivered by the holder evidence a number of Depositary Shares in
excess of the number of whole shares of Preferred Stock to be withdrawn, the
Preferred Stock Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of Depositary Shares.
REDEMPTION AND REPURCHASE OF PREFERRED STOCK
If a series of Preferred Stock represented by Depositary Shares is subject
to redemption at the option of the Company, then, whenever the Company redeems
shares of Preferred Stock of such series held by the Preferred Stock
Depositary, the Preferred Stock Depositary will redeem as of the same
redemption date the number of Depositary Shares representing the shares of the
Preferred Stock so redeemed, provided the Company shall have paid in full to
the Preferred Stock Depositary the redemption price of the Preferred Stock to
be redeemed plus any other amounts or property payable with respect to the
Preferred Stock to be redeemed. The redemption price per Depositary Share will
be equal to the redemption price and any other amounts or property per share
payable with respect to the Preferred Stock multiplied by the fraction of a
share of Preferred Stock represented by one such
26
<PAGE>
Depositary Share. If less than all of the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by the
Preferred Stock Depositary by lot or pro rata or other equitable method, in
each case as may be determined by the Company. If the Depositary Shares
evidenced by a Depositary Receipt are to be redeemed in part only, one or more
new Depositary Receipts will be issued for any Depositary Shares not so
redeemed.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Receipts evidencing the Depositary Shares so called
for redemption will cease, except the right to receive any monies payable upon
such redemption and any money or other property to which the holders of such
Depositary Receipts were entitled upon such redemption upon surrender of such
Depositary Receipts to the Preferred Stock Depositary.
Depositary Shares, as such, are not subject to repurchase by the Company at
the option of the holders. Nevertheless, if the Preferred Stock represented by
Depositary Shares is subject to repurchase of the option of the holders, the
related Depositary Receipts may be surrendered by the holders thereof to the
Preferred Stock Depositary with written instructions to the Preferred Stock
Depositary to instruct the Company to repurchase the Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipts at
the applicable repurchase price specified in the related Prospectus
Supplement. The Company, upon receipt of such instructions and subject to the
Company having funds legally available therefor, will repurchase the requisite
whole number of shares of such Preferred Stock from the Preferred Stock
Depositary, who in turn will repurchase such Depositary Receipts.
Notwithstanding the foregoing, holders shall only be entitled to request the
repurchase of Depositary Shares representing one or more whole shares of the
related Preferred Stock. The repurchase price per Depositary Share will be
equal to the repurchase price and any other amounts per share payable with
respect to the Preferred Stock multiplied by the fraction of a share of
Preferred Stock represented by one Depositary Share. If the Depositary Shares
evidenced by a Depositary Receipt are to be repurchased in part only, one or
more new Depositary Receipts will be issued for any Depositary Shares not to
be repurchased.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock of any series represented by Depositary Shares are entitled to vote, the
relevant Preferred Stock Depositary will mail the information contained in
such notice of meeting to the record holders of the related Depositary
Receipts. Each record holder of Depositary Receipts evidencing Depositary
Shares on the record date (which will be the same date as the record date for
the Preferred Stock) will be entitled to instruct the Preferred Stock
Depositary as to the exercise of the voting rights pertaining to the amount of
Preferred Stock represented by such holder's Depositary Shares. The Preferred
Stock Depositary will endeavor, insofar as practicable, to vote the number of
shares of Preferred Stock represented by such Depositary Shares in accordance
with such instructions, and the Company will agree to take all reasonable
action which may be deemed necessary by the Preferred Stock Depositary in
order to enable the Preferred Stock Depositary to do so. The Preferred Stock
Depositary will abstain from voting shares of Preferred Stock to the extent it
does not receive specific instructions from the holders of Depositary Receipts
evidencing the Depositary Shares representing such Preferred Stock.
CONVERSION AND EXCHANGE OF PREFERRED STOCK
If the Preferred Stock represented by Depositary Shares is exchangeable at
the option of the Company for other Securities, then, whenever the Company
exercises its option to exchange all or a portion of such shares of Preferred
Stock held by the Preferred Stock Depositary, the Preferred Stock Depositary
will exchange as of the same exchange date a number of such Depositary Shares
representing the shares of the Preferred Stock so exchanged, provided the
Company shall have issued and deposited with the Preferred Stock Depositary
the Securities for which such shares of Preferred Stock are to be exchanged.
The exchange rate per Depositary Share shall be equal to the exchange rate per
share of Preferred Stock multiplied by the fraction of a share of Preferred
Stock represented by one Depositary Share. If less than all of the Depositary
Shares are to be exchanged, the Depositary Shares to be exchanged will be
selected by the Preferred Stock Depositary by lot or pro rata or other
equitable method, in each case as may be determined by the Company. If the
Depositary Shares evidenced by a
27
<PAGE>
Depositary Receipt are to be exchanged in part only, a new Depositary Receipt
or Receipts will be issued for any Depositary Shares not to be exchanged.
Depositary Shares, as such, are not convertible or exchangeable at the
option of the holders into other Securities or property. Nevertheless, if the
Preferred Stock represented by Depositary Shares is convertible into or
exchangeable for other Securities at the option of the holders, the related
Depositary Receipts may be surrendered by holders thereof to the Preferred
Stock Depositary with written instructions to the Preferred Stock Depositary
to instruct the Company to cause conversion or exchange, as the case may be,
of the Preferred Stock represented by the Depositary Shares evidenced by such
Depositary Receipts into a whole number of shares of Common Stock or Preferred
Stock, a whole number of Common Stock Warrants, or Debt Securities in
authorized denominations, as specified in the related Prospectus Supplement.
The Company, upon receipt of such instructions and any amounts payable in
respect thereof, will cause the conversion or exchange, as the case may be,
and will deliver to the holders such number of whole shares of Common Stock or
Preferred Stock, a whole number of Common Stock Warrants, or a principal
amount of Debt Securities in authorized denominations (and cash in lieu of any
fractional Security). The exchange or conversion rate per Depositary Share
shall be equal to the exchange or conversion rate per share of Preferred Stock
multiplied by the fraction of a share of Preferred Stock represented by one
Depositary Share. If the Depositary Shares evidenced by a Depositary Receipt
are to be converted or exchanged in part only, a new Depositary Receipt or
Receipts will be issued for any Depositary Shares not to be converted or
exchanged.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The Depositary Receipts evidencing Depositary Shares and any provision of
the related Deposit Agreement may at any time be amended by agreement between
the Company and the Preferred Stock Depositary. However, any amendment that
materially and adversely alters the rights of the holders of Depositary
Receipts issued under any Deposit Agreement will not be effective unless such
amendment has been approved by the holders of at least a majority of such
Depositary Receipts then outstanding (or such greater proportion as may be
required by the rules of any securities exchange on which the related
Depositary Shares may be listed). In no event may any such amendment impair
the right of any holder of Depositary Receipts, subject to the conditions
specified in the Deposit Agreement, to receive the related Preferred Stock
upon surrender of such Depositary Receipts as described above under "--
Withdrawal of Preferred Stock."
The Deposit Agreement may be terminated by the Company upon not less than 60
days' notice to the Preferred Stock Depositary. In any such case, the
Preferred Stock Depositary shall deliver or make available to each holder of
the related Depositary Receipts, upon surrender of such Depositary Receipts,
such number of whole shares of the related series of Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipts,
together with cash in lieu of any fractional shares (to the extent the Company
has deposited such cash with the Preferred Stock Depositary). The Deposit
Agreement will automatically terminate if all of the shares of Preferred Stock
deposited thereunder shall have been withdrawn, redeemed, converted or
exchanged or if there shall have been a final distribution in respect of such
Preferred Stock in connection with any liquidation, dissolution or winding up
of the Company.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay the fees and expenses of the Preferred Stock Depositary
in connection with the performance of its duties under the Deposit Agreement,
and will pay all transfer and other taxes and governmental charges arising
solely from the existence of the Deposit Agreement. Holders of Depositary
Receipts will be required to pay all other transfer and other taxes and
governmental charges (including taxes and other governmental charges in
connection with the transfer, exchange, surrender or conversion of Depositary
Receipts) and such other charges as are expressly provided in the Deposit
Agreement.
28
<PAGE>
RESIGNATION AND REMOVAL OF DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time
remove the Preferred Stock Depositary, any such resignation or removal to take
effect upon the appointment of a successor Preferred Stock Depositary.
MISCELLANEOUS
The Preferred Stock Depositary will forward to holders of Depositary
Receipts any reports and communications from the Company which are received by
the Preferred Stock Depositary with respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if
either is prevented or delayed by law or any circumstances beyond its control
in performing its obligations under the Deposit Agreement. The obligations of
the Company and the Preferred Stock Depositary under the Deposit Agreement
will be limited to performing their duties thereunder without gross negligence
or willful misconduct, and the Company and the Preferred Stock Depositary will
not be obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or any related shares of Preferred Stock or Depositary
Receipts unless satisfactory indemnity is furnished. The Company and the
Preferred Stock Depositary may rely on advice of counsel, accountants or other
advisors, and information provided by persons presenting shares of Preferred
Stock for deposit, holders of Depositary Receipts or other persons believed to
be authorized or competent and on documents believed to be genuine.
In the event that the Preferred Stock Depositary shall receive conflicting
claims, requests or instructions from any holders of Depositary Receipts, on
the one hand, and the Company, on the other hand, the Preferred Stock
Depositary shall be entitled to act on such claims, requests or instructions
received from the Company.
DESCRIPTION OF COMMON STOCK
The Company may issue (either separately or together with other Securities)
shares of its Common Stock. Under its Amended Certificate of Incorporation,
the Company is authorized to issue up to 60,000,000 shares of Common Stock.
Reference is made to the applicable Prospectus Supplement relating to Common
Stock offered thereby for the terms relevant thereto, including the number of
shares offered and the initial public offering price. For a summary of certain
terms of the Common Stock, including certain restrictions on dividends, see
"Description of Capital Stock" below.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue (either separately or together with other Securities)
warrants for the purchase of Common Stock ("Common Stock Warrants"). The
Common Stock Warrants are to be issued under warrant agreements (each a
"Common Stock Warrant Agreement") to be entered into between the Company and a
bank or trust company, as warrant agent ("Common Stock Warrant Agent"), all as
set forth in the Prospectus Supplement relating to the particular issue of
Common Stock Warrants. The form of Common Stock Warrant Agreement, including
the form of certificates representing the Common Stock Warrants ("Common Stock
Warrant Certificates"), that will be entered into with respect to a particular
offering of Common Stock Warrants has been or will be filed as an exhibit to
or incorporated by reference in the Registration Statement. The following
summary of certain provisions of the Common Stock Warrant Agreement and the
Common Stock Warrants and the summary of certain terms of the particular
Common Stock Warrant Agreement and Common Stock Warrants set forth in the
applicable Prospectus Supplement do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all the provisions of
the particular Common Stock Warrant Agreement and the related Common Stock
Warrant Certificates, all of which are incorporated herein by reference.
29
<PAGE>
The following description of the Common Stock Warrants sets forth certain
general terms and provisions of the Common Stock Warrants and the related
Common Stock Warrant Agreement to which any Prospectus Supplement may relate.
Certain other terms of any Common Stock Warrants and the related Common Stock
Warrant Agreement will be described in the applicable Prospectus Supplement.
To the extent that any particular terms of the Common Stock Warrants or the
related Common Stock Warrant Agreement described in a Prospectus Supplement
differ from any of the terms described herein, then such terms described
herein shall be deemed to have been superseded by such Prospectus Supplement.
GENERAL
Reference is made to the applicable Prospectus Supplement for the terms of
the Common Stock Warrants offered thereby, including (where applicable): (1)
the title and aggregate number of such Common Stock Warrants; (2) the number
of shares of Common Stock that may be purchased upon exercise of each such
Common Stock Warrant; the price, or the manner of determining the price, at
which such shares may be purchased upon such exercise; if other than cash, the
property and manner in which the exercise price may be paid; and any minimum
number of such Common Stock Warrants that are exercisable at any one time; (3)
the time or times at which, or period or periods during which, such Common
Stock Warrants may be exercised and the expiration date of such Common Stock
Warrants; (4) the terms of any right of the Company to redeem such Common
Stock Warrants; (5) the terms of any right of the Company to accelerate the
exercise of such Common Stock Warrants upon the occurrence of certain events;
(6) whether such Common Stock Warrants will be sold with any other Securities,
and the date, if any, on and after which such Common Stock Warrants and any
such other Securities will be separately transferable; and (7) any other terms
of such Common Stock Warrants.
Common Stock Warrant Certificates may be surrendered for transfer or
exchange for new Common Stock Warrant Certificates of authorized denominations
at any office or agency of the relevant Common Stock Warrant Agent maintained
for such purpose, subject to the terms of the related Common Stock Warrant
Agreement. Unless otherwise specified in the applicable Prospectus Supplement,
Common Stock Warrant Certificates will be issued in denominations evidencing
any whole number of Common Stock Warrants. No service charge will be made for
any permitted transfer or exchange of Common Stock Warrant Certificates, but
the Company or the Common Stock Warrant Agent may require payment of any tax
or other governmental charge payable in connection therewith.
EXERCISE OF WARRANTS
Each Common Stock Warrant will entitle the holder to purchase such number of
shares of Common Stock at such exercise price as shall in each case be set
forth in, or be determinable from, the Prospectus Supplement relating to such
Common Stock Warrants, by payment of such exercise price in the Currency and
in the manner specified in the Prospectus Supplement. Common Stock Warrants
may be exercised at any time up to the date and time specified in the
applicable Prospectus Supplement for the expiration thereof. After the
specified expiration time on the specified date of expiration, unexercised
Common Stock Warrants will become void.
Upon receipt at an office or agency indicated in the applicable Prospectus
Supplement of (i) payment of the exercise price and (ii) the Common Stock
Warrant Certificate properly completed and duly executed, the Company will, as
soon as practicable, forward a certificate or certificates representing the
whole number of shares of Common Stock purchasable upon such exercise. Unless
otherwise indicated in the applicable Prospectus Supplement, fractional shares
of Common Stock will not be issued upon the exercise of Warrants and, in lieu
thereof, the Company will make a cash payment in an amount determined as
provided in the applicable Prospectus Supplement. If less than all of the
Common Stock Warrants represented by such Common Stock Warrant Certificate are
exercised, a new Common Stock Warrant Certificate will be issued for the
remaining number of Common Stock Warrants. The holder of a Common Stock
Warrant will be required to pay any tax or other governmental charge that may
be imposed in connection with any transfer involved in the issuance of the
Common Stock purchased upon such exercise.
30
<PAGE>
MODIFICATIONS
Any Common Stock Warrant Agreement and the terms of the related Common Stock
Warrants may be modified or amended by the Company and the applicable Common
Stock Warrant Agent, without the consent of any holder of the related Common
Stock Warrants, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
therein, or in any other manner that the Company deems necessary or desirable
and that will not materially and adversely affect the interests of the holders
of the related Common Stock Warrants.
The Company and the applicable Common Stock Warrant Agent may also modify or
amend the applicable Common Stock Warrant Agreement and the terms of the
related Common Stock Warrants with the consent of the holders of not less than
a majority in number of the then outstanding unexercised Common Stock Warrants
affected thereby; provided that no such modification or amendment that
accelerates the expiration date, increases the exercise price, or reduces the
number of outstanding Common Stock Warrants the consent of whose holders is
required for any such amendment or modification, may be made without the
consent of each holder affected thereby.
NO RIGHTS AS STOCKHOLDERS
Holders of Common Stock Warrants are not entitled, by virtue of being such
holders, to vote, consent or receive notice as stockholders of the Company in
respect of any meeting of stockholders for the election of directors of the
Company or any other matter, or to exercise any other rights whatsoever as
stockholders of the Company, or to receive any dividends or distributions, if
any, on the Common Stock.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of (i) 60,000,000
shares of Common Stock, par value $.01 per share, and (ii) 7,000,000 shares of
Preferred Stock, par value $.01 per share. As of June 30, 1998, (i) 20,276,298
shares of Common Stock were issued and outstanding and an additional 66,114
shares of Common Stock were issued and held in the Company's treasury, and
(ii) no shares of Preferred Stock were outstanding.
The following summary of certain provisions of the Common Stock, Preferred
Stock, the Company's Amended Certificate of Incorporation and By-laws, and the
Rights Agreement and the Rights issued thereunder (as such terms are defined
below) does not purport to be complete and is qualified in its entirety by
reference to the Amended Certificate of Incorporation, By-laws and Rights
Agreement, copies of which have been incorporated by reference or filed as
exhibits to the Registration Statement.
COMMON STOCK
The holders of Common Stock are entitled to one vote per share on all
matters voted on by stockholders, including elections of directors, and,
except as otherwise required by law or provided by the express provisions of
any series of Preferred Stock of the Company, the holders of such shares will
exclusively possess all voting power of the Company. There is no cumulative
voting in the election of directors, and no holder of Common Stock is entitled
as such, as a matter of right, to subscribe for or purchase any shares of
Common Stock or Preferred Stock. Subject to the preferential rights of any
outstanding series of Preferred Stock, the holders of Common Stock are
entitled to receive ratably such dividends as may be declared from time to
time by the Board of Directors from funds legally available therefor. In the
event of a liquidation, dissolution or winding up of the Company, holders of
Common Stock are entitled to share ratably in all assets remaining after
payment or provision for liabilities and amounts owing in respect of any
outstanding Preferred Stock. The Common Stock represents non-withdrawable
capital, is not of an insurable type and is not insured by the FDIC or any
other governmental agency or instrumentality.
31
<PAGE>
Certain of the Company's debt instruments contain restrictive covenants that
could limit the amount of dividends payable by the Company or the redemption
or repurchase of capital stock by the Company. In the event of a deterioration
in the financial condition or results of operations of the Company, such
covenants could limit or prohibit the payment of dividends on Common Stock.
Likewise, the Company is a holding company substantially all of whose
consolidated assets are held by its subsidiaries, and the cash flow of the
Company and the consequent ability to pay dividends on Common Stock are
dependent upon the results of operations of such subsidiaries and the
distribution of funds by such subsidiaries to the Company. In addition, if the
Company were to become a bank holding company, various regulatory restrictions
would limit directly or indirectly the amount of dividends the Company could
pay as well as the repurchase or redemption of its capital stock. See "The
Company--Pending Structural Changes--Dividends," "The Company--Pending
Structural Changes--Repurchase or Redemption of Equity Securities" and
"Description of Debt Securities--Ranking of Debt Securities; Holding Company
Structure."
The transfer agent for the Common Stock is ChaseMellon Shareholder Services,
L.L.C. ("ChaseMellon").
PREFERRED STOCK
Preferred Stock may be issued from time to time in one or more series.
Subject to limitations prescribed by Delaware law and the Amended Certificate
of Incorporation, the Board of Directors is authorized to fix the number of
shares constituting each series of Preferred Stock and the rights and
preferences thereof. Preferred Stock may rank prior to Common Stock with
respect to the payment of dividends and distributions upon liquidation,
dissolution or winding up of the Company and may have full or limited voting
rights. The issuance of Preferred Stock, while providing flexibility in
connection with possible acquisitions and other corporate purposes, could,
among other things, adversely, affect the voting power of the holders of
Common Stock and, under certain circumstances, make it more difficult for a
third party to gain control of the Company and could have the effect of
delaying or preventing a merger, tender offer or other attempted takeover of
the Company. No holder of Preferred Stock shall be entitled, as a matter of
right, to subscribe for or purchase any shares of Preferred Stock or Common
Stock.
RIGHTS AGREEMENT
On July 26, 1990, the Board of Directors of the Company declared a dividend
payable August 6, 1990 of one right (a "Right") for each outstanding share of
Common Stock (i) held of record at the close of business on August 6, 1990
(the "Record Time") or (ii) issued thereafter and prior to the Separation Time
(as hereinafter defined). The Rights were issued pursuant to a Stockholder
Protection Rights Agreement, dated as of July 31, 1990, as amended (the
"Rights Agreement"), between the Company and ChaseMellon, as successor Rights
Agent (the "Rights Agent"). Each Right entitles its registered holder to
purchase from the Company after the Separation Time one share of Common Stock
for $27.50 (the "Exercise Price"), subject to adjustment.
The Rights will be evidenced by the Common Stock certificates until the
close of business on the earlier of (either, the "Separation Time") (i) the
tenth business day (or such later date as the Board of Directors of the
Company may from time to time fix by resolution) after the date on which any
person (other than the Company, a majority-owned subsidiary of the Company or
an employee stock ownership or other employee benefit plan of the Company or a
majority-owned subsidiary of the Company) commences a tender or exchange offer
which, if consummated, would result in such person's becoming the beneficial
owner of 10% or more of the outstanding shares of Common Stock (any person
having such beneficial ownership being referred to as an "Acquiring Person,"
subject to certain exceptions), and (ii) the tenth business day after the
first date (the "Flip-in Date") of public announcement (the "Stock Acquisition
Date") by the Company or an Acquiring Person that an Acquiring Person has
become such, other than as a result of a Flip-over Transaction or Event (as
defined below). The Rights Agreement provides that, until the Separation Time,
the Rights will be transferred with and only with Common Stock. Common Stock
certificates issued after the Record Time but prior to the Separation Time,
and Common Stock certificates evidencing shares of Common Stock outstanding at
the Record Time, shall evidence one Right for each share of Common Stock
evidenced thereby. Promptly following the Separation Time, separate
32
<PAGE>
certificates evidencing the Rights ("Rights Certificates") and a disclosure
statement describing the Rights will be mailed by the Rights Agent to holders
of record of Common Stock at the Separation Time.
Rights may be exercised on any business day after the Separation Time and
prior to the Expiration Time. The Rights will expire on the earliest of (i)
the Exchange Time (as defined below), (ii) the date on which the Board of
Directors of the Company elects to redeem all of the then outstanding Rights
and (iii) August 6, 2000 (in any such case, the "Expiration Time").
The Exercise Price and the number of Rights outstanding, or in certain
circumstances the securities purchasable upon exercise of the Rights, are
subject to adjustment from time to time under certain circumstances,
including, but not limited to, the payment of a Common Stock dividend or the
issuance of any securities in exchange for Common Stock.
In the event that prior to the Expiration Time, a Flip-in Date occurs, the
Company shall take such action as shall be necessary to ensure and provide
that each Right (other than Rights beneficially owned by the Acquiring Person
or any affiliate or associate thereof, which Rights shall become void) shall
constitute the right to purchase from the Company, upon payment of the
Exercise Price, that number of shares of Common Stock having an aggregate
Market Price (as defined in the Rights Agreement), on the applicable Stock
Acquisition Date equal to twice the Exercise Price. In addition, the Board of
Directors of the Company may, at its option, at any time after a Flip-in Date
and prior to the date on which a Schedule 13D, or any amendment thereto, is
filed with the Commission by an Acquiring Person announcing that such person
has become the beneficial owner of more than 50% of the outstanding shares of
Common Stock, elect to exchange all (but not less than all) of the then
outstanding Rights (other than Rights beneficially owned by the Acquiring
Person or any affiliate or associate thereof, which Rights become void) for
shares of Common Stock at an exchange ratio of one share of Common Stock per
Right, appropriately adjusted to reflect any stock split, stock dividend,
distribution of securities or assets in respect of, in lieu of, or in exchange
for, Common Stock, or similar transaction occurring after the Separation Time
(the "Exchange Ratio"). Immediately upon such action by the Board of Directors
of the Company (the "Exchange Time"), the right to exercise the Rights will
terminate and each Right will thereafter represent only the right to receive a
number of shares of Common Stock equal to the Exchange Ratio.
In the event that there shall not be sufficient treasury shares or
authorized but unissued shares of Common Stock to permit the exercise or
exchange in full of the Rights, the Company shall take such action as shall be
necessary to ensure and provide, to the extent permitted by applicable law and
any agreements or instruments in effect on the Stock Acquisition Date to which
it is a party, that each Right shall thereafter constitute the right to
receive, (x) at the Company's option, either (A) upon payment of the Exercise
Price, debt or equity securities or other assets (or a combination thereof)
having a fair value equal to twice the Exercise Price, or (B) without payment
of consideration (except as otherwise required by applicable law), debt or
equity securities or other assets (or a combination thereof) having a fair
value equal to the Exercise Price, or (y) if the Board of Directors of the
Company elects to exchange the Rights (as described in the preceding
paragraph), debt or equity securities or other assets (or a combination
thereof) having a fair value equal to the product of the Market Price of a
share of Common Stock on the Flip-in Date times the Exchange Ratio in effect
on the Flip-in Date. In any case set forth in (x) or (y) above, the fair value
of such debt or equity securities or other assets shall be as determined in
good faith by the Board of Directors of the Company, after consultation with a
nationally recognized investment banking firm.
Prior to the Expiration Time, the Company shall not enter into, consummate
or permit to occur a transaction or series of transactions after the time an
Acquiring Person has become such in which, directly or indirectly, (i) the
Company shall consolidate or merge or participate in a binding share exchange
with any other person (other than a wholly owned subsidiary of the Company)
if, at the time of the consolidation, merger of share exchange, or at the time
the Company enters into any agreement with respect thereto, the Acquiring
Person controls the Board of Directors of the Company and any term of or
arrangement concerning such consolidation, merger or share exchange relating
to the Acquiring Person is not identical to the terms and arrangements
relating
33
<PAGE>
to other holders of Common Stock or (ii) wherein the Company shall sell or
otherwise transfer (or one or more of its subsidiaries shall sell or otherwise
transfer) assets (A) aggregating more than 50% of the assets (measured by
either book value or fair market value), or (B) generating more than 50% of
the operating income or cash flow, of the Company and its subsidiaries (taken
as a whole) to any Person or Persons which are affiliated or associated or
otherwise acting in concert, if, at the time of such sale or transfer of
assets or at the time the Company (or any such subsidiary) enters into an
agreement with respect to such sale or transfer, the Acquiring Person controls
the Board of Directors of the Company (a "Flip-over Transaction or Event"),
unless and until it shall have entered into a supplemental agreement with the
person engaging in such Flip-over Transaction or Event (the "Flip-over
Entity"), for the benefit of the holders of the Rights, providing that, upon
consummation or occurrence of the Flip-over Transaction or Event each Right
shall thereafter constitute the right to purchase from the Flip-over Entity,
upon payment of the Exercise Price, that number of shares of capital stock
with the greatest voting power in respect of the election of directors of the
Flip-over Entity having an aggregate Market Price on the date of such Flip-
over Transaction or Event equal to twice the Exercise Price.
The Board of Directors of the Company may, at its option, at any time prior
to the close of business on the Flip-in Date, elect to redeem all (but not
less than all) of the then outstanding Rights at a price of $.01 per Right
(the "Redemption Price"). Immediately upon the action of the Board of
Directors of the Company electing to redeem the Rights (or, if the resolution
of the Board of Directors electing to redeem the Rights states that the
redemption will not be effective until the occurrence of a specified future
time or event, upon the occurrence of such future time or event), the Rights
will terminate and each Right will thereafter represent only the right to
receive the Redemption Price in cash.
The holders of Rights will not, solely by reason of their ownership of
Rights, have any rights as stockholders of the Company, including, without
limitation, the right to vote or to receive dividends.
The Rights will not prevent a takeover of the Company. However, the Rights
may cause substantial dilution to an Acquiring Person unless the Rights are
first redeemed by the Board of Directors of the Company.
SECTION 203 OF THE DELAWARE LAW
Section 203 of the Delaware General Corporation Law (the "DGCL") generally
prohibits a publicly held Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years
following the time that such stockholder became an interested stockholder,
unless certain conditions are satisfied. However, a corporation's certificate
of incorporation may exclude such corporation from the restrictions imposed by
Section 203 of the DGCL, and the Amended Certificate of Incorporation provides
that Section 203 of the DGCL shall not govern the Company.
CERTAIN PROVISIONS OF THE AMENDED CERTIFICATE OF INCORPORATION AND BY-LAWS
Several provisions of the Company's Amended Certificate of Incorporation and
By-laws may have the effect of deterring a takeover of the Company. These
provisions include: (i) certain advance notice and content requirements for
business to be brought before the annual stockholders' meeting by a
stockholder or for nomination by any stockholder of persons for election to
the Board of Directors; (ii) a prohibition on stockholder action by written
consent; (iii) a requirement that only the chairman of the Board of Directors
of the Company, president or majority of the directors then in office may call
a special meeting of the stockholders; and (iv) the classification of
Company's Board of Directors into three classes serving staggered three-year
terms.
The foregoing provisions could make it more difficult for a third party to
gain control of the Company, and could have the effect of delaying or
preventing a merger, tender offer or other attempted takeover of the Company.
34
<PAGE>
DESCRIPTION OF TRUST PREFERRED SECURITIES
Each Trust may issue only one series of Trust Preferred Securities which
shall have terms described in the Prospectus Supplement relating thereto. The
Declaration of each Trust will authorize its Regular Trustees to issue on
behalf of such Trust one series of its Trust Preferred Securities. Each
Declaration will be qualified as an indenture under the Trust Indenture Act.
The forms of Declaration have been or will be filed or incorporated by
reference as exhibits to the Registration Statement. The terms of each
Declaration will be those set forth in the Declaration and those made part of
the Declaration by the Trust Indenture Act. The summary of certain provisions
of the Trust Preferred Securities and the Declarations set forth below and in
any Prospectus Supplement do not purport to be complete and are subject to and
are qualified in their entirety by reference to all of the provisions of the
Declarations and the Trust Preferred Securities, which provisions (including
defined terms) are incorporated herein by reference.
The following description of the Trust Preferred Securities and the
Declaration of any Trust sets forth certain general terms and provisions of
such Trust Preferred Securities and Declaration to which any Prospectus
Supplement may relate. Certain other specific terms of such Trust Preferred
Securities and Declaration will be described in the applicable Prospectus
Supplement. To the extent that any particular terms of any Trust Preferred
Securities or Declaration described in a Prospectus Supplement differ from any
of the terms described herein, then such terms described herein shall be
deemed to have been superseded by such Prospectus Supplement.
The Trust Preferred Securities of any Trust will have such terms, including
distributions, redemption, voting, liquidation, conversion rights and such
other preferred, deferred or other special rights or such restrictions as
shall be set forth in the Declaration of such Trust or made part of such
Declaration by the Trust Indenture Act, and which will generally mirror the
terms of the Junior Subordinated Debt Securities held by such Trust and
described in the Prospectus Supplement related thereto. Reference is made to
the Prospectus Supplement relating to the Trust Preferred Securities of any
Trust for specific terms, including (i) the designation of such Trust
Preferred Securities; (ii) the number of such Trust Preferred Securities;
(iii) the annual distribution rate (or method of determining such rate) for
such Trust Preferred Securities and the date or dates upon which such
distributions shall be payable; (iv) whether distributions on such Trust
Preferred Securities shall be cumulative, and, in the case of Trust Preferred
Securities having such cumulative distribution rights, the date or dates or
method of determining the date or dates from which distributions on such Trust
Preferred Securities shall be cumulative; (v) the amount or amounts which
shall be paid out of the assets of such Trust to the holders of such Trust
Preferred Securities upon voluntary or involuntary dissolution, winding-up or
termination of such Trust; (vi) the right or obligation, if any, of such Trust
to purchase or redeem such Trust Preferred Securities and the price or prices
at which, the period or periods within which, and the terms and conditions
upon which, such Trust Preferred Securities shall or may be purchased or
redeemed, in whole or in part, pursuant to such right or obligation; (vii) the
voting rights, if any, of such Trust Preferred Securities in addition to those
(if any) required by law, including the number of votes per Trust Preferred
Security and any requirement for the approval by the holders of such Trust
Preferred Securities, as a condition to specified action or amendments to the
applicable Declaration; (viii) the terms and conditions, if any, upon which
such Trust Preferred Securities may be converted into or exchanged for shares
of Common Stock or other Securities, including the conversion price per share
or conversion rate and the circumstances, if any, under which any such
conversion right shall expire; (ix) the terms and conditions, if any, upon
which the Junior Subordinated Debt Securities held by such Trust may be
distributed to holders of such Trust Preferred Securities; (x) if applicable,
any securities exchange upon which such Trust Preferred Securities shall be
listed; and (xi) any other relevant rights, preferences, privileges,
limitations or restrictions of such Trust Preferred Securities. All Trust
Preferred Securities offered hereby will be guaranteed by the Company to the
extent set forth below under "Description of Trust Preferred Securities
Guarantees." Certain United States federal income tax considerations
applicable to any offering of Trust Preferred Securities will be described in
the Prospectus Supplement relating thereto.
In connection with the issuance of Trust Preferred Securities by any Trust,
such Trust will issue one series of Trust Common Securities. The Declaration
of such Trust will authorize its Regular Trustees to issue on behalf of such
Trust one series of Trust Common Securities having such terms including
distributions, redemption,
35
<PAGE>
voting and liquidation rights or such restrictions as shall be set forth
therein. The terms of the Trust Common Securities of a Trust will be
substantially identical to the terms of the Trust Preferred Securities of such
Trust, and such Trust Common Securities will rank pari passu, and payments
will be made thereon pro rata, with such Trust Preferred Securities except
that, if an event of default under the Declaration occurs and is continuing,
the rights of the holders of such Trust Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of such Trust
Preferred Securities. Except in certain limited circumstances, the Trust
Common Securities of a Trust will also carry the right to vote to appoint,
remove or replace any of the Trustees of such Trust. All of the Trust Common
Securities will be directly or indirectly owned by the Company.
In connection with the issuance of Trust Preferred Securities by a Trust,
such Trust will purchase a series of Junior Subordinated Debt Securities from
the Company. The ability of such Trust to make distributions and other
payments on such Trust Preferred Securities will depend upon the receipt by
such Trust of interest and other payments made by the Company on such Junior
Subordinated Debt Securities. Such Junior Subordinated Debt Securities will be
obligations exclusively of the Company and, because the Company is a holding
company substantially all of whose consolidated assets are held by its
subsidiaries, the cash flow of the Company and the consequent ability to
service its debt, including such Junior Subordinated Debt Securities, will be
dependent upon the results of operations of such subsidiaries and the
distribution of funds by such subsidiaries to the Company. In addition,
because the Company is a holding company, such Junior Subordinated Debt
Securities will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries. See "Description of Debt
Securities--Ranking of Debt Securities; Holding Company Structure."
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
If an event of default under the Declaration of any Trust occurs and is
continuing, then the holders of the Trust Preferred Securities of such Trust
would rely on the enforcement by the Property Trustee of such Trust of its
rights as a holder of the Junior Subordinated Debt Securities held by such
Trust against the Company. In addition, the holders of a majority in
liquidation amount of the Trust Preferred Securities of such Trust will have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to such Property Trustee or to direct the exercise of
any trust or power conferred upon such Property Trustee under the Declaration
of such Trust, including the right to direct such Property Trustee to exercise
the remedies available to it as a holder of the Junior Subordinated Debt
Securities held by such Trust. If such Property Trustee fails to enforce its
rights under such Junior Subordinated Debt Securities, a holder of the Trust
Preferred Securities of such Trust, to the fullest extent permitted by law,
may institute a legal proceeding directly against the Company to enforce such
Property Trustee's rights under such Junior Subordinated Debt Securities
without first instituting any legal proceeding against such Property Trustee
or any other person or entity. Notwithstanding the foregoing, if an event of
default under the Declaration of such Trust has occurred and is continuing and
such event is attributable to the failure of the Company to pay the principal
of or premium or interest, if any, on such Junior Subordinated Debt Securities
on the date such principal, premium or interest, as the case may be, is
otherwise payable (or in the case of redemption, on the redemption date), then
a holder of the Trust Preferred Securities of such Trust may directly
institute a proceeding for enforcement of payment to such holder of the
principal, premium or interest, as the case may be, on such Junior
Subordinated Debt Securities having a principal amount equal to the aggregate
liquidation amount of the Trust Preferred Securities of such holder (a "Direct
Action") on or after the respective due date specified in such Junior
Subordinated Debt Securities. In connection with such Direct Action, the
Company will be subrogated to the rights of such holder of the Trust Preferred
Securities under the Declaration of such Trust to the extent of any payment
made by the Company to such holder of Trust Preferred Securities in such
Direct Action.
36
<PAGE>
DESCRIPTION OF TRUST PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Preferred
Securities Guarantee Agreements (the "Trust Preferred Securities Guarantees")
which will be executed and delivered by the Company for the benefit of the
holders from time to time of Trust Preferred Securities of the respective
Trusts. Each Trust Preferred Securities Guarantee will be qualified as an
indenture under the Trust Indenture Act. A trustee whose name will be set
forth in the applicable Prospectus Supplement will act as the trustee (a
"Preferred Guarantee Trustee") under each Trust Preferred Securities Guarantee
for purposes of the Trust Indenture Act. The Company will enter into a
separate Trust Preferred Securities Guarantee in respect of the Trust
Preferred Securities of each Trust, and the Preferred Guarantee Trustees under
such Trust Preferred Securities Guarantees may be different. The forms of
Trust Preferred Securities Guarantee have been or will be filed or
incorporated by reference as an exhibit to the Registration Statement. The
terms of each Trust Preferred Securities Guarantee will be those set forth in
such Trust Preferred Securities Guarantee and those made part of such Trust
Preferred Securities Guarantee by the Trust Indenture Act. The summary of
certain provisions of the Trust Preferred Securities Guarantees set forth
below and in any Prospectus Supplement does not purport to be complete and is
subject to and qualified in its entirety by reference to all of the provisions
of the Trust Preferred Securities Guarantees, which provisions of the Trust
Preferred Securities Guarantees (including defined terms) are incorporated
herein by reference. Each Trust Preferred Securities Guarantee will be held by
the applicable Preferred Guarantee Trustee for the benefit of the holders of
the Trust Preferred Securities of the applicable Trust.
The following description of the Trust Preferred Securities Guarantees sets
forth certain general terms and provisions of the Trust Preferred Securities
Guarantee to which any Prospectus Supplement may relate. Certain other
specific terms of the applicable Trust Preferred Securities Guarantee will be
described in the applicable Prospectus Supplement. To the extent that any
particular terms of a Trust Preferred Securities Guarantee described in a
Prospectus Supplement differ from any of the terms described herein, then such
terms described herein shall be deemed to have been superseded by such
Prospectus Supplement.
GENERAL
Pursuant to each Trust Preferred Securities Guarantee, the Company will
agree, to the extent set forth therein, to pay in full, to the holders of the
Trust Preferred Securities of the applicable Trust, the Guarantee Payments (as
defined herein) (except to the extent paid by such Trust), as and when due,
regardless of any defense, right of setoff or counterclaim which such Trust
may have or assert. The following payments with respect to the Trust Preferred
Securities of the applicable Trust, to the extent not paid by such Trust (the
"Guarantee Payments"), will be subject to the Trust Preferred Securities
Guarantee thereof (without duplication): (i) any accumulated and unpaid
distributions which are required to be paid on such Trust Preferred
Securities, to the extent such Trust shall have funds available therefor; (ii)
the redemption price (if any) set forth in the applicable Prospectus
Supplement (the "Redemption Price"), which will not be lower than the
liquidation amount, and all accumulated and unpaid distributions, to the
extent such Trust has funds available therefor, with respect to any such Trust
Preferred Securities called for redemption by such Trust and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of such Trust
(other than in connection with the distribution of Junior Subordinated Debt
Securities to the holders of its Trust Preferred Securities or the conversion
or redemption of all of its Trust Preferred Securities), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid
distributions on its Trust Preferred Securities to the date of payment, to the
extent such Trust has funds available therefor, and (b) the amount of assets
of such Trust remaining available for distribution to holders of its Trust
Preferred Securities in liquidation of such Trust. The Company's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Company to the holders of Trust Preferred Securities of the
applicable Trust or by causing such Trust to pay such amounts to such holders.
A Trust Preferred Securities Guarantee will not apply to any payment of
distributions on the Trust Preferred Securities of the applicable Trust except
to the extent such Trust shall have funds available therefor. If the Company
does not make interest payments on the Junior Subordinated Debt Securities
purchased by such Trust,
37
<PAGE>
such Trust will not pay distributions on the Trust Preferred Securities issued
by such Trust and will not have funds available therefor. A Trust Preferred
Securities Guarantee, when taken together with the Company's obligations under
the Junior Subordinated Debt Securities sold to the applicable Trust, the
Indenture relating to such Junior Subordinated Debt Securities and the
Declaration of such Trust, including the Company's obligations to pay certain
costs, expenses, debts and liabilities of such Trust (other than with respect
to its Trust Securities), will provide a full and unconditional guarantee on a
subordinated basis by the Company of payments due on the Trust Preferred
Securities of such Trust.
The Company will also agree separately to guarantee the obligations of each
Trust with respect to its Trust Common Securities (each, a "Trust Common
Securities Guarantee") to the same extent as the Trust Preferred Securities
Guarantee relating to the Trust Preferred Securities of such Trust, except
that upon an event of default under the Junior Subordinated Indenture pursuant
to which the Junior Subordinated Debt Securities held by such Trust were
issued, holders of such Trust Preferred Securities shall have priority over
holders of such Trust Common Securities with respect to distributions and
payments on liquidation, redemption or otherwise.
Certain covenants of the Company to be set forth in the Trust Preferred
Securities Guarantee relating to the Trust Preferred Securities of any Trust
will be described in the applicable Prospectus Supplement.
MODIFICATION OF THE TRUST PREFERRED SECURITIES GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of Trust Preferred Securities of the applicable Trust
(in which case no vote will be required), a Trust Preferred Securities
Guarantee may be amended only with the prior approval of the holders of not
less than a majority in liquidation amount of the outstanding Trust Preferred
Securities of such Trust. The manner of obtaining any such approval of holders
of such Trust Preferred Securities will be as set forth in an accompanying
Prospectus Supplement. All guarantees and agreements contained in a Trust
Preferred Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the holders of the Trust Preferred Securities of the applicable Trust then
outstanding.
TERMINATION
A Trust Preferred Securities Guarantee will terminate (a) upon full payment
of the redemption price of, plus accumulated and unpaid distributions on, all
Trust Preferred Securities of the applicable Trust, (b) upon distribution of
the Junior Subordinated Debt Securities held by such Trust to the holders of
its Trust Preferred Securities or the conversion, if applicable, of all of
such Trust Preferred Securities into Common Stock or other Securities, or (c)
upon full payment of the amounts payable in accordance with the Declaration of
such Trust upon liquidation of such Trust. A Trust Preferred Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of Trust Preferred Securities of the applicable
Trust must restore payment of any sums paid under the Trust Preferred
Securities of such Trust or such Trust Preferred Securities Guarantee.
EVENTS OF DEFAULT
An event of default under a Trust Preferred Securities Guarantee will occur
upon (a) the failure of the Company to perform any of its payment or other
obligations thereunder or (b) if applicable, the failure by the Company to
deliver Common Stock or other applicable Securities upon an appropriate
election by the holder or holders of Trust Preferred Securities of the
applicable Trust to convert such Trust Preferred Securities into shares of
Common Stock or other applicable Securities, as the case may be.
The holders of a majority in liquidation amount of the Trust Preferred
Securities of the applicable Trust have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
applicable Preferred Guarantee Trustee in respect of the Trust Preferred
Securities Guarantee or to direct the exercise of any trust or power conferred
upon such Preferred Guarantee Trustee under such Trust Preferred
38
<PAGE>
Securities Guarantee. If such Preferred Guarantee Trustee fails to enforce
such Trust Preferred Securities Guarantee, any holder of Trust Preferred
Securities guaranteed thereby may institute a legal proceeding directly
against the Company to enforce such Preferred Guarantee Trustee's rights under
such Trust Preferred Securities Guarantee, without first instituting a legal
proceeding against the applicable Trust, such Preferred Guarantee Trustee or
any other person or entity. The Company will waive any right or remedy to
require that any action be brought first against the applicable Trust or any
other person or entity before proceeding directly against the Company.
STATUS OF THE TRUST PREFERRED SECURITIES GUARANTEES
Unless otherwise stated in the applicable Prospectus Supplement, each Trust
Preferred Securities Guarantee will constitute an unsecured obligation of the
Company and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Company except any liabilities that may be pari passu
expressly by their terms and (ii) senior to Common Stock. The terms of the
Trust Preferred Securities of each Trust will provide that each holder of such
Trust Preferred Securities by acceptance thereof agrees to the subordination
provisions and other terms of the Trust Preferred Securities Guarantee
relating thereto.
Each Trust Preferred Securities Guarantee will constitute a guarantee of
payment and not of collection (that is, the guaranteed party may institute a
legal proceeding directly against the guarantor to enforce its rights under
the guarantee without instituting a legal proceeding against any other person
or entity).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEES
Each Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to the applicable Trust Preferred Securities Guarantee, will undertake
to perform only such duties as are specifically set forth in such Trust
Preferred Securities Guarantee and, after default, shall exercise the same
degree of care as a prudent individual would exercise in the conduct of his or
her own affairs. Subject to such provisions, a Preferred Guarantee Trustee is
under no obligation to exercise any of the powers vested in it by the
applicable Trust Preferred Securities Guarantee at the request of any holder
of the Trust Preferred Securities guaranteed thereby, unless offered
reasonable indemnity against the costs, expenses and liabilities which might
be incurred thereby.
PLAN OF DISTRIBUTION
The Company or either of the Trusts, as the case may be, may sell Securities
to one or more underwriters for public offering and sale by them or may sell
Securities through agents which solicit or receive offers on behalf of the
Company or such Trust, as the case may be, or through dealers or through a
combination of any such methods of sale, and the Company and the Trusts may
also sell Securities directly to investors. Any such underwriter or agent
involved in the offer and sale of Securities will be named in the applicable
Prospectus Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company or the Trusts, as the case may be, may, from
time to time, authorize agents acting on a best or reasonable efforts basis to
solicit or receive offers to purchase the Securities upon the terms and
conditions as are set forth in the applicable Prospectus Supplement. In
connection with the sale of Securities, underwriters or agents may be deemed
to have received compensation from the Company or the applicable Trust, as the
case may be, in the form of underwriting discounts or commissions or other
underwriting compensation and may also receive commissions from purchasers of
Securities for whom they may act as agents. Underwriters may sell Securities
to or through dealers, and such dealers may receive compensation in the form
of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent.
39
<PAGE>
Any compensation paid by the Company or the applicable Trust to underwriters
or agents in connection with the offering of Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Underwriters,
dealers and agents participating in a distribution of the Securities
(including agents only soliciting or receiving offers to purchase Securities
on behalf of the Company or the applicable Trust) may be deemed to be
underwriters, and any discounts, commissions or other underwriting
compensation received by them and any profit realized by them on resale of
Securities may be deemed to be underwriting discounts and commissions.
Under agreements which may be entered into by the Company or the applicable
Trust, as the case may be, underwriters, dealers and agents who participate in
the distribution of Securities may be entitled to indemnification against
certain liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company may
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any
institutional purchaser under any such contract will not be subject to any
conditions except (i) the purchase by such institution of the Securities
covered by such contract shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which such institution is subject, and (ii) if
such Securities are being sold to underwriters, the Company shall have sold to
such underwriters the total principal amount of such Securities less the
principal amount thereof covered by delayed delivery contracts.
Certain of the underwriters, dealers or agents and their affiliates may
engage in transactions with and perform services for the Company in the
ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the offering made hereby will be
passed upon for the Company by Robert J. Flax, Executive Vice President,
General Counsel and Secretary of the Company, and by Silver, Freedman & Taff,
L.L.P., Washington, D.C. As of June 30, 1998, Mr. Flax owned 4,090 shares of
Common Stock and held options to acquire 83,500 additional shares of Common
Stock. The validity of the Trust Preferred Securities will be passed upon for
the Company and the Trusts by Richards, Layton & Finger, Wilmington, Delaware.
Brown & Wood llp, San Francisco, California, will act as counsel for any
underwriters or agents.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report dated January 26, 1998, which is
incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing.
The consolidated financial statements of AFEH and Subsidiary as of December
31, 1997 and 1996, and for each of the years in the three-year period ended
December 31, 1997 have been incorporated by reference herein and in the
prospectus/registration statement in reliance upon the report of KPMG Peat
Marwick LLP, independent auditors, incorporated by reference herein and in the
prospectus/registration statement, and upon the authority of said firm as
experts in accounting and auditing. The report of KPMG Peat Marwick LLP with
respect to the consolidated financial statements of AFEH and Subsidiary as of
December 31, 1997 refers to the consummation of a Merger between AFEH and the
Company effective January 2, 1998.
40
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses (all of which will be paid by
the Company) to be incurred in connection with the registration and sale of
the Securities:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................. $ 132,750
Blue Sky fees and expenses.................................... 25,000
Rating agency fees............................................ 100,000
Legal fees and expenses....................................... 300,000
Accounting fees and expenses.................................. 200,000
Trustees' fees and expenses................................... 100,000
Printing and engraving........................................ 200,000
Miscellaneous................................................. 192,250
----------
Total....................................................... $1,250,000
==========
</TABLE>
All of the above amounts, other than the Securities and Exchange Commission
filing fee, are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by Section 102(b)(7) of the Delaware General Corporation Law
(the "DGCL"), the Company's Certificate of Incorporation eliminates to the
fullest extent permitted by Delaware law the personal liability of its
directors to the Company or its stockholders for monetary damages for any
breach of fiduciary duty as a director.
Section 9 of the Company's certificate of incorporation provides for
indemnification of any director or officer of the Company against any and all
expense, liability and loss (including attorneys' fees, judgments, fines and
amounts paid in settlement) reasonably incurred or suffered by him or her in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, to the
fullest extend authorized by Delaware law, subject to certain limitations set
forth in the certificate of incorporation. Section 9 also authorizes the
Company to purchase insurance on behalf of directors and officers against
liabilities incurred in their capacities as such.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation's board of directors to grant indemnity under certain
circumstances to directors and officers, when made, or threatened to be made,
parties to certain proceedings by reason of such status with the corporation,
against judgments, fines, settlements and expenses, including attorneys' fees.
In addition, under certain circumstances such persons may be indemnified
against expenses actually and reasonably incurred in defense of a proceeding
by or on behalf of the corporation. Similarly, the corporation, under certain
circumstances, is authorized to indemnify directors and officers of other
corporations or enterprises who are serving as such at the request of the
corporation, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a
proceeding by or in the name of such other corporation or enterprise.
Indemnification is permitted where such person (i) was acting in good faith,
(ii) was acting in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation or other corporation or
enterprise, as appropriate, (iii) with respect to a criminal proceeding, had
no reasonable cause to believe his or her conduct was unlawful, and (iv) was
not adjudged to be liable to the corporation or other corporation or
enterprise (unless the court where the proceeding was brought determines that
such person is fairly and reasonably entitled to indemnity).
II-1
<PAGE>
Unless ordered by a court, indemnification may be made only following a
determination that such indemnification is permissible because the person
being indemnified has met the requisite standard of conduct. Such
determination may be made (i) by the corporation's board of directors by a
majority vote of directors not at the time parties to such proceeding, even if
less than a quorum; or (ii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion; or
(iii) by the stockholders.
Section 145 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings upon the receipt of an undertaking by the
director or officer to repay such amount if it is ultimately determined that
he or she is not entitled to be indemnified by the corporation against such
expenses.
Under a directors' and officers' liability insurance policy, directors and
officers of the Company are insured against certain liabilities, including
certain liabilities under the Securities Act of 1933.
Reference is made to the form of Underwriting Agreement included or
incorporated by reference or to be included or incorporated by reference
herein as an exhibit to this Registration Statement for provisions regarding
indemnification of the Company's officers, directors and controlling persons
against certain liabilities.
ITEM 16. EXHIBITS
1(a) Form of Underwriting Agreement for Subordinated Debt Securities
(incorporated by reference from the Company's Registration Statement on
Form S-3 (No. 333-29757))
1(b) Form of Underwriting Agreement for the other Securities registered
hereby(a)
4(a) Restated Certificate of Incorporation of the Company, together with
Certificate of Amendment of Restated Certificate of Incorporation
(incorporated by reference to the Company's Registration Statement on
Form S-3 (No. 333-29757))
4(b) By-Laws of the Company (incorporated by reference to the Company's
Current Report on Form 8-K filed on January 10, 1994 (File No. 0-17901))
4(c) Form of Senior Indenture(b)
4(d) Form of Subordinated Indenture(b)
4(e) Form of Junior Subordinated Indenture(b)
4(f) Form of Common Stock Warrant Agreement, including form of Warrant
certificate(b)
4(g) Form of Certificate of Designations for Preferred Stock(a)
4(h) Form of Debt Security(b)
4(i) Form of Deposit Agreement, including form of Depositary Receipt(b)
4(j) Certificate of Trust of Bay View Capital I(b)
4(k) Certificate of Trust of Bay View Capital II(b)
4(l) Trust Agreement of Bay View Capital I(b)
4(m) Trust Agreement of Bay View Capital II(b)
4(n) Form of Amended and Restated Declaration of Trust of Bay View Capital I,
including form of Trust Preferred Security(b)
4(o) Form of Amended and Restated Declaration of Trust of Bay View Capital
II, including form of Trust Preferred Security(b)
4(p) Form of Preferred Securities Guarantee Agreement with respect to Trust
Preferred Securities of Bay View Capital I(b)
4(q) Form of Preferred Securities Guarantee Agreement with respect to Trust
Preferred Securities of Bay View Capital II(b)
II-2
<PAGE>
4(r) Stockholder Protection Rights Agreement (the "Rights Agreement") dated
as of July 31, 1990 between the Company and ChaseMellon Shareholder
Services, L.L.C., as successor rights agent (incorporated by reference
to the Company's Registration Statement on Form 8 filed on March 9, 1993
(Amendment No. 2 to the Company's Registration Statement on Form 8-A
filed on August 6, 1990 (File No. 0-17901)))
4(s) First Amendment to the Rights Agreement dated February 26, 1993
(incorporated by reference to the Company's Registration Statement on
Form 8 filed on March 9, 1993 (Amendment No. 2 to the Company's
Registration Statement on Form 8-A filed on August 6, 1990 (File No. 0-
17901)))
4(t) Second Amendment to the Rights Agreement dated October 10, 1997
(incorporated by reference to the Company's Registration Statement on
Form 8 filed on October 10, 1997 (Amendment No. 3 to the Company's
Registration Statement on Form 8-A filed on August 6, 1990 (File No. 0-
17901)))
4(u) Third Amendment to the Rights Agreement (incorporated by reference to
the Company's Registration Statement on Form 8 filed on September 29,
1998 (Amendment No. 4 to the Company's Registration Statement on Form 8-
A filed on August 6, 1990 (File No. 0-17901)))
4(v) Form of Rights Certificate and Election to Exercise pursuant to Rights
Agreement (incorporated by reference to the Company's Registration
Statement on Form 8 filed on March 9, 1993 (Amendment No. 2 to the
Company's Registration Statement on Form 8-A filed on August 6, 1990
(File No. 0-17901)))
5(a) Opinion of Silver, Freedman & Taff, L.L.P. as to the validity of the
Securities other than the Trust Preferred Securities(b)
5(b) Opinion of Richards, Layton & Finger as to the validity of the Trust
Preferred Securities(b)
12(a) Computation of Ratio of Earnings to Fixed Charges(b)
23(a) Consent of Deloitte & Touche LLP(b)
23(b) Consent of KPMG Peat Marwick LLP(b)
23(c) Consent of Silver, Freedman & Taff, L.L.P. (included in Exhibit 5(a))
23(d) Consent of Richards, Layton & Finger (included in Exhibit 5(b))
24 Power of Attorney of certain officers and directors (included as part of
the signature pages hereof)(b)
25(a) Form T-1 Statement of Eligibility of the trustee for Senior Debt
Securities(c)
25(b) Form T-1 Statement of Eligibility of the trustee for Subordinated Debt
Securities(c)
25(c) Form T-1 Statement of Eligibility of the trustee for the Junior
Subordinated Debt Securities(c)
25(d) Form T-1 Statement of Eligibility of the trustee with respect to the
Amended and Restated Declaration of Trust of Bay View Capital I(c)
25(e) Form T-1 Statement of Eligibility of the trustee with respect to the
Amended and Restated Declaration of Trust of Bay View Capital II(c)
25(f) Form T-1 Statement of Eligibility of the trustee with respect to the
Preferred Securities Guarantee Agreement of Bay View Capital I(c)
25(g) Form T-1 Statement of Eligibility of the trustee with respect to the
Preferred Securities Guarantee Agreement of Bay View Capital II(c)
- --------
(a) To be filed by amendment or as an exhibit to a document to be incorporated
or deemed to be incorporated by reference in the Registration Statement.
(b) Filed herewith.
(c) To be filed in accordance with Section 305(b)(2) of the Trust Indenture Act
of 1939.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any acts or events arising after the effective date
of this registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in this registration statement; (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to
such information in this registration statement; provided, however, that
subparagraphs (i) and (ii) do not apply if the information required to be
included in a post-effective amendment by those subparagraphs is contained in
periodic reports filed by a registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act of 1933 if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby further undertakes that for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrants, pursuant to the provisions described under Item 15 or otherwise,
each registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by a registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrants will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
II-4
<PAGE>
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
The undersigned registrants hereby undertake to file an application for the
purpose of determining the eligibility of the trustees under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bay View Capital
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Mateo, State of California, on
September 30, 1998.
Bay View Capital Corporation
/s/ Robert J. Flax
By: _________________________________
Robert J. Flax
Executive Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature to this
Registration Statement appears below hereby constitutes and appoints Robert J.
Flax and David A. Heaberlin, or any one or more of them, as such person's true
and lawful attorney-in-fact and agent with full power of substitution for such
person and in such person's name, place and stead, in any and all capacities,
to sign and to file with the Securities and Exchange Commission any and all
amendments and post-effective amendments to this Registration Statement, with
exhibits thereto, any registration statement filed pursuant to Rule 462(b)
promulgated under the Securities Act of 1933 and any and all other documents
filed in connection with such filings, granting unto each said attorney-in-
fact and agent full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that each said attorney-in-fact and agent,
or any substitute therefor, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 30, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
Director, President and Chief Executive
/s/ Edward H. Sondker Officer (Principal Executive Officer)
____________________________________
Edward H. Sondker
/s/ David A. Heaberlin Executive Vice President and Chief
____________________________________ Financial Officer (Principal Financial
David A. Heaberlin and Principal Accounting Officer)
/s/ John R. McKean Chairman and Director
____________________________________
John R. McKean
Director
____________________________________
Paula R. Collins
/s/ Roger K. Easley Director
____________________________________
Roger K. Easley
/s/ Thomas M. Foster Director
____________________________________
Thomas M. Foster
</TABLE>
II-6
<PAGE>
SIGNATURE TITLE
--------- -----
/s/ Stephen T. McLin Director
____________________________________
Stephen T. McLin
/s/ Angelo J. Siracusa Director
____________________________________
Angelo J. Siracusa
/s/ W. Blake Winchell Director
____________________________________
W. Blake Winchell
Director
____________________________________
George H. Krauss
/s/ Robert M. Greber Director
____________________________________
Robert M. Greber
II-7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, Bay View Capital
I certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Mateo, State of California on September 30,
1998.
Bay View Capital I
By: Bay View Capital Corporation,
as Sponsor
/s/ Robert J. Flax
By: _______________________________
Robert J. Flax
Executive Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, Bay View Capital
II certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Mateo, State of California on September 30,
1998.
Bay View Capital II
By: Bay View Capital Corporation,
as Sponsor
/s/ Robert J. Flax
By: _______________________________
Robert J. Flax
Executive Vice President,
General Counsel and Secretary
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<S> <C> <C>
1(a) Form of Underwriting Agreement for Subordinated Debt
Securities (incorporated by reference from the
Company's Registration Statement on Form S-3 (No. 333-
29757))................................................
1(b) Form of Underwriting Agreement for the other Securities
registered hereby(a)...................................
4(a) Restated Certificate of Incorporation of the Company,
together with Certificate of Amendment of Restated
Certificate of Incorporation (incorporated by reference
to the Company's Registration Statement on Form S-3
(No. 333-29757)).......................................
4(b) By-Laws of the Company (incorporated by reference to
the Company's Current Report on Form 8-K filed on
January 10, 1994 (File No. 0-17901))...................
4(c) Form of Senior Indenture(b)............................
4(d) Form of Subordinated Indenture(b)......................
4(e) Form of Junior Subordinated Indenture(b)...............
4(f) Form of Common Stock Warrant Agreement, including form
of Warrant certificate(b)..............................
4(g) Form of Certificate of Designations for Preferred
Stock(a)...............................................
4(h) Form of Debt Security(b)...............................
4(i) Form of Deposit Agreement, including form of Depositary
Receipt(b).............................................
4(j) Certificate of Trust of Bay View Capital I(b)..........
4(k) Certificate of Trust of Bay View Capital II(b).........
4(l) Trust Agreement of Bay View Capital I(b)...............
4(m) Trust Agreement of Bay View Capital II(b)..............
4(n) Form of Amended and Restated Declaration of Trust of
Bay View Capital I, including form of Trust Preferred
Security(b)............................................
4(o) Form of Amended and Restated Declaration of Trust of
Bay View Capital II, including form of Trust Preferred
Security(b)............................................
4(p) Form of Preferred Securities Guarantee Agreement with
respect to Trust Preferred Securities of Bay View
Capital I(b)...........................................
4(q) Form of Preferred Securities Guarantee Agreement with
respect to Trust Preferred Securities of Bay View
Capital II(b)..........................................
4(r) Stockholder Protection Rights Agreement (the "Rights
Agreement") dated as of July 31, 1990 between the
Company and ChaseMellon Shareholder Services, L.L.C.,
as successor rights agent (incorporated by reference to
the Company's Registration Statement on Form 8 filed on
March 9, 1993 (Amendment No. 2 to the Company's
Registration Statement on Form 8-A filed on August 6,
1990 (File No. 0-17901)))..............................
4(s) First Amendment to the Rights Agreement dated February
26, 1993 (incorporated by reference to the Company's
Registration Statement on Form 8 filed on March 9, 1993
(Amendment No. 2 to the Company's Registration
Statement on Form 8-A filed on August 6, 1990 (File No.
0-17901))).............................................
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<S> <C> <C>
4(t) Second Amendment to the Rights Agreement dated October
10, 1997 (incorporated by reference to the Company's
Registration Statement on Form 8 filed on October 10,
1997 (Amendment No. 3 to the Company's Registration
Statement on Form 8-A filed on August 6, 1990 (File No.
0-17901)))..............................................
4(u) Third Amendment to the Rights Agreement (incorporated by
reference to the Company's Registration Statement on
Form 8 filed on September 29, 1998 (Amendment No. 4 to
the Company's Registration Statement on Form 8-A filed
on August 6, 1990 (File No. 0-17901)))..................
4(v) Form of Rights Certificate and Election to Exercise
pursuant to Rights Agreement (incorporated by reference
to the Company's Registration Statement on Form 8 filed
on March 9, 1993 (Amendment No. 2 to the Company's
Registration Statement on Form 8-A filed on August 6,
1990 (File No. 0-17901)))...............................
5(a) Opinion of Silver, Freedman & Taff, L.L.P. as to the
validity of the Securities other than the Trust
Preferred Securities(b).................................
5(b) Opinion of Richards, Layton & Finger as to the validity
of the Trust Preferred Securities(b)....................
12(a) Computation of Ratio of Earnings to Fixed Charges(b)....
23(a) Consent of Deloitte & Touche LLP(b).....................
23(b) Consent of KPMG Peat Marwick LLP(b).....................
23(c) Consent of Silver, Freedman & Taff, L.L.P. (included in
Exhibit 5(a))...........................................
23(d) Consent of Richards, Layton & Finger (included in
Exhibit 5(b))...........................................
24 Power of Attorney of certain officers and directors
(included as part of the signature pages hereof)(b).....
25(a) Form T-1 Statement of Eligibility of the trustee for
Senior Debt Securities(c)...............................
25(b) Form T-1 Statement of Eligibility of the trustee for
Subordinated Debt Securities(c).........................
25(c) Form T-1 Statement of Eligibility of the trustee for the
Junior Subordinated Debt Securities(c)..................
25(d) Form T-1 Statement of Eligibility of the trustee with
respect to the Amended and Restated Declaration of Trust
of Bay View Capital I(c)................................
25(e) Form T-1 Statement of Eligibility of the trustee with
respect to the Amended and Restated Declaration of Trust
of Bay View Capital II(c)...............................
25(f) Form T-1 Statement of Eligibility of the trustee with
respect to the Preferred Securities Guarantee Agreement
of Bay View Capital I(c)................................
25(g) Form T-1 Statement of Eligibility of the trustee with
respect to the Preferred Securities Guarantee Agreement
of Bay View Capital II(c)...............................
</TABLE>
- --------
(a) To be filed by amendment or as an exhibit to a document to be incorporated
or deemed to be incorporated by reference in the Registration Statement.
(b) Filed herewith.
(c) To be filed in accordance with Section 305(b)(2) of the Trust Indenture Act
of 1939.
<PAGE>
EXHIBIT 4(c)
- --------------------------------------------------------------------------------
BAY VIEW CAPITAL CORPORATION,
Issuer
to
,
Trustee
_______________
INDENTURE
_______________
Dated as of
Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- --------------------- ---------------------
<S> <C>
(S)310(a)(1) 607
(a)(2) 607
(b) 608
(S)312(a) 701
(b) 702
(c) 702
(S)313(a) 703
(b)(2) 703
(c) 703
(d) 703
(S)314(a) 704
(c)(1) 102
(c)(2) 102
(e) 102
(f) 102
(S)316(a) (last sentence) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
(S)317(a)(1) 503
(a)(2) 504
(b) 1003
(S)318(a) 108
</TABLE>
- -----------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Recitals..................................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions........................................................... 1
Section 102. Compliance Certificates and Opinions.................................. 11
Section 103. Form of Documents Delivered to Trustee................................ 11
Section 104. Acts of Holders....................................................... 12
Section 105. Notices, etc.......................................................... 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................................................... 15
Section 112. Benefits of Indenture................................................. 15
Section 113. Governing Law......................................................... 16
Section 114. Legal Holidays........................................................ 16
Section 115. Counterparts.......................................................... 16
Section 116. Judgment Currency..................................................... 16
Section 117. Immunity of Stockholders, Directors, Officers and Agents of the
Company............................................................... 17
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally....................................................... 17
Section 202. Form of Trustee's Certificate of Authentication....................... 17
Section 203. Securities in Global Form............................................. 18
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.................................. 19
Section 302. Currency; Denominations............................................... 22
Section 303. Execution, Authentication, Delivery and Dating........................ 23
Section 304. Temporary Securities.................................................. 24
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
Section 305. Registration, Transfer and Exchange...................................... 25
Section 306. Mutilated, Destroyed, Lost and Stolen Securities......................... 28
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved........................ 29
Section 308. Persons Deemed Owners.................................................... 31
Section 309. Cancellation............................................................. 32
Section 310. Computation of Interest.................................................. 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge............................................... 32
Section 402. Defeasance and Covenant Defeasance....................................... 34
Section 403. Application of Trust Money............................................... 38
ARTICLE FIVE
REMEDIES
Section 501. Events of Default........................................................ 38
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 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts................................. 45
Section 509. Restoration of Rights and Remedies....................................... 45
Section 510. Rights and Remedies Cumulative........................................... 45
Section 511. Delay or Omission Not Waiver............................................. 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
Section 601. Certain Rights of Trustee................................................ 47
Section 602. Notice of Defaults....................................................... 48
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
Section 603. Not Responsible for Recitals or Issuance of Securities................... 48
Section 604. May Hold Securities...................................................... 49
Section 605. Money Held in Trust...................................................... 49
Section 606. Compensation and Reimbursement........................................... 49
Section 607. Corporate Trustee Required; Eligibility.................................. 50
Section 608. Resignation and Removal; Appointment of Successor........................ 50
Section 609. Acceptance of Appointment by Successor................................... 52
Section 610. Merger, Conversion, Consolidation or Succession to Business.............. 53
Section 611. Appointment of Authenticating Agent...................................... 53
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders................ 55
Section 702. Preservation of Information; Communications to Holders................... 56
Section 703. Reports by Trustee....................................................... 56
Section 704. Reports by Company....................................................... 56
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc............................................. 57
Section 802. Successor Person Substituted for Company................................. 58
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders....................... 58
Section 902. Supplemental Indentures with Consent of Holders.......................... 59
Section 903. Execution of Supplemental Indentures..................................... 60
Section 904. Effect of Supplemental Indentures........................................ 61
Section 905. Reference in Securities to Supplemental Indentures....................... 61
Section 906. Conformity with Trust Indenture Act...................................... 61
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and Additional Amounts.......... 61
Section 1002. Maintenance of Office or Agency......................................... 61
Section 1003. Money for Securities Payments to Be Held in Trust....................... 63
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
Section 1004. Additional Amounts...................................................... 65
Section 1005. Corporate Existence..................................................... 65
Section 1006. Maintenance of Properties............................................... 66
Section 1007. Payment of Taxes and Other Claims....................................... 66
Section 1008. Waiver of Certain Covenants............................................. 66
Section 1009. Company Statement as to Compliance...................................... 66
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article................................................ 67
Section 1102. Election to Redeem; Notice to Trustee................................... 67
Section 1103. Selection by Trustee of Securities to be Redeemed....................... 67
Section 1104. Notice of Redemption.................................................... 68
Section 1105. Deposit of Redemption Price............................................. 69
Section 1106. Securities Payable on Redemption Date................................... 69
Section 1107. Securities Redeemed in Part............................................. 70
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article................................................ 71
Section 1202. Satisfaction of Sinking Fund Payments with Securities................... 71
Section 1203. Redemption of Securities for Sinking Fund............................... 72
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article................................................. 72
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article................................................. 73
</TABLE>
iv
<PAGE>
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
<TABLE>
<S> <C> <C>
Section 1501. Purposes for Which Meetings May Be Called........................... 73
Section 1502. Call, Notice and Place of Meetings.................................. 73
Section 1503. Persons Entitled to Vote at Meetings................................ 74
Section 1504. Quorum; Action...................................................... 74
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings............................................................ 75
Section 1506. Counting Votes and Recording Action of Meetings..................... 76
</TABLE>
v
<PAGE>
INDENTURE, dated as of ^, 199^ (the "Indenture"), among BAY VIEW CAPITAL
CORPORATION, a corporation duly organized and existing under the laws of State
of Delaware (hereinafter called the "Company"), having its principal executive
office located at 1840 Gateway Drive, San Mateo, California, 94404, and ^, a
banking association duly organized and existing under the laws of the United
States of America (hereinafter called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior 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;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except
1
<PAGE>
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.
"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.
2
<PAGE>
"Board Resolution" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, delivered to the Trustee.
"Business Day" means, with respect to the Securities of any series unless
otherwise specified pursuant to Section 301 with respect to such Securities, any
day other than a Saturday, Sunday or other day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or executive
order to close; provided that such term shall mean, with respect to any Place of
Payment for such Securities of any series, unless otherwise specified with
respect to such Securities pursuant to Section 301, any day other than a
Saturday, Sunday or other day on which banking institutions in such Place of
Payment are authorized or obligated by law, regulation or executive order to
close.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights or other equivalents (however designated) in the equity
of such Person (including, without limitation, with respect to a corporation,
common stock, preferred stock and other capital stock, with respect to a
partnership, partnership interests, whether general or limited, and, with
respect to a limited liability company, limited liability company interests) and
any rights (other than debt securities convertible into or exchangeable or
exercisable for equity interests), warrants or options exchangeable or
exercisable for or convertible into an equity interest in such Person.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"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.
"Consolidated Assets" means all amounts that would be shown as assets on a
consolidated balance sheet of the Company and its consolidated Subsidiaries
prepared in accordance with generally accepted accounting principles.
"Consolidated Net Tangible Assets" means, as of any particular time, the
aggregate amount of Consolidated Assets (less depreciation, amortization and
other applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities, and (b) all
3
<PAGE>
goodwill, tradenames, trademarks, patents, debt discount and expense and other
intangibles in each case net of applicable amortization, all as shown on the
most recent consolidated financial statements of the Company prepared in
accordance with generally accepted accounting principles.
"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 ^.
"Corporation" includes corporations, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a Security by
Standard & Poor's Corporation, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of legal tender
for payment of public or private debts in the United States of America.
"ECU" means the European Currency Units as defined and revised from time to
time by the Council of the European Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European Community.
"European Union" means the European Community, the European Coal and Steel
Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
4
<PAGE>
"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.
"Indebtedness" means with respect to any Person (a) any liability of such
Person (1) for borrowed money, or under any reimbursement obligation relating to
a letter of credit, or (2) evidenced by a bond, note, debenture or similar
instrument, or (3) for payment obligations arising under any conditional sale or
other title retention arrangement (including a purchase money obligation) given
in connection with the acquisition of any businesses, properties or assets of
any kind, or (4) for the payment of money relating to a capitalized lease
obligation; (b) any liability of others described in the preceding clause (a)
that such Person has guaranteed or that is otherwise its legal liability; and
(c) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (a) and (b)
above.
"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).
5
<PAGE>
"Independent Public Accountants" means accountants or a firm of accountants
that, with respect to the Company and any other obligor under the Securities or
the Coupons, are independent public accountants within the meaning of the
Securities Act of 1933, as amended, and the rules and regulations promulgated by
the Commission thereunder, who may be the independent public accountants
regularly retained by the Company or who may be other independent public
accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", with respect to any Original Issue Discount Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holidays" has the meaning specified in Section 114.
"Major Bank Subsidiary" means (i) Bay View Bank, a federal savings bank,
and any successor to all or substantially all of the business of Bay View Bank,
a federal savings bank, in each case so long as it shall be a Subsidiary of the
Company and (ii) any Significant Subsidiary of the Company which is a bank,
trust company, savings bank, savings and loan association, savings association
or other banking or thrift institution.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes a Redemption Date
for such Security.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, that complies
with the requirements of Section 314(e) of the Trust Indenture Act and is
delivered to the Trustee.
6
<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to this
Indenture which provides for declaration of an amount less than the principal
face amount thereof to be due and payable upon acceleration pursuant to Section
502.
"Outstanding", when used with respect to any Securities, means, as of the
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant
hereto (other than pursuant to Section 402) with the Trustee or
any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and
any Coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except
to the extent provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof satisfactory
to it that such Security is held by a bona fide purchaser in
whose hands such Security is a valid obligation of the Company;
and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities, if the terms of
such Security provide for such conversion or exchange pursuant to
Section 301;
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
7
<PAGE>
Security that may be counted in making such determination and that shall be
deemed to be Outstanding for such purposes shall be equal to the amount of the
principal thereof that pursuant to the terms of such Original Issue Discount
Security would be declared (or shall have been declared to be) due and payable
upon a declaration of acceleration thereof pursuant to Section 502 at the time
of such determination, and (ii) the principal amount of any Indexed Security
that may be counted in making such determination and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided in or pursuant
to this Indenture, and (iii) the principal amount of a Security denominated in a
Foreign Currency shall be the Dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the Dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making any such
determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which shall have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee (A)
the pledgee's right so to act with respect to such Securities and (B) that the
pledgee is not the Company or any other obligor upon the Securities or any
Coupons appertaining thereto or an Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or places
where the principal of, or any premium or interest on, or any Additional Amounts
with respect to such Security are payable as provided in or pursuant to this
Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"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.
8
<PAGE>
"Registered Security" means any Security established pursuant to Section
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered Security
on any Interest Payment Date therefor means the date, if any, specified in or
pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer or employee of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
["Restricted Subsidiary" means any Subsidiary (i) that is majority owned or
controlled by the Company or any of its Subsidiaries; (ii) substantially all of
the operating assets of which are located or the principal business of which is
carried on within the United States, Puerto Rico, the U.S. Virgin Islands or
Canada; (iii) which was in existence on the date hereof or thereafter becomes a
Subsidiary of the Company, unless any such Subsidiary is determined by the Board
of Directors not to be a Restricted Subsidiary because in the opinion of the
Board of Directors it is not of material importance to the total business
conducted by the Company and its Subsidiaries taken as a whole; and (iv) the
assets of which have a gross book value (without deducting any depreciation,
amortization or other applicable reserves) which exceeds 1% of Consolidated
Assets.]
"Securitization Entity" means any pooling arrangement or entity (except for
any entity in corporate or partnership form) formed or originated for the
purpose of holding, and issuing securities representing interests in, one or
more pools of mortgages, leases, credit card receivables, home equity loan
receivables, automobile loans, leases or installment sales contracts, other
consumer receivables or other financial assets of the Company or any of its
Subsidiaries, and shall include, without limitation, any grantor trust, owner's
trust or real estate mortgage investment conduit.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"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.
9
<PAGE>
"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 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 for purposes of the definition of "Restricted
Subsidiary" and 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.
"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
10
<PAGE>
required by applicable law or regulation, a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and, unless otherwise provided with
respect to any Security, any successor to such Person. If at any time there is
more than one such Person, "U.S. Depository" or "Depository" shall mean, with
respect to any Securities, the qualifying entity which has been appointed with
respect to such Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means, with respect to any Person, any class or classes or
series or series of Capital Stock of such Person pursuant to which the holders
thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not, at the time, Capital Stock of any other class
or classes or series or series shall have, or might have, voting power by reason
of the happening of any contingency).
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this Indenture,
upon any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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.
11
<PAGE>
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by or pursuant to this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
made, given or taken by Holders of Securities of such series may, alternatively,
be embodied in and evidenced by the record of Holders of Securities of such
series voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
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.
12
<PAGE>
(4) The ownership, principal amount and serial numbers of Bearer Securities
held by any Person, and the date of the commencement and the date of the
termination of holding the same, may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by any trust company,
bank, banker or other depositary reasonably acceptable to the Company, wherever
situated, if such certificate shall be deemed by the Company and the Trustee to
be satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Company and the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or 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,
13
<PAGE>
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to the attention of its Treasurer at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not earlier
than the earliest date and the second such publication not later than the
latest date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
14
<PAGE>
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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 and the Holders of Securities or
Coupons, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
State.
15
<PAGE>
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that specifically states
that such provision shall apply in lieu hereof) payment need not be made at such
Place of Payment on such date, but such payment may be made on the next
succeeding day that is a Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or at the Stated
Maturity or Maturity, and no interest shall accrue on the amount payable on such
date or at such time for the period from and after such Interest Payment Date,
Stated Maturity or Maturity, as the case may be, to the next succeeding Business
Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding 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
16
<PAGE>
against any past, present or future stockholder, employee, officer or director,
as such, of the Company or of any predecessor or successor, either directly or
through the Company or any predecessor or successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders
and as part of the consideration for the issue of the Securities.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officer of the Company executing such Security or Coupon as evidenced by the
execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons.
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
17
<PAGE>
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in global form. If Securities
of a series shall be issuable in temporary or permanent global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 303 or 304 with respect
thereto. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall be
in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise specified
in or pursuant to this Indenture or any Securities, payment of principal of, any
premium and interest on, and any Additional Amounts in respect of any Security
in temporary or permanent global form shall be made to the Person or Persons
specified therein.
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.
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,
18
<PAGE>
(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 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
19
<PAGE>
which such interest shall be payable and the Regular Record Date, if any,
for the interest payable on Registered Securities on any Interest Payment
Date, whether and under what circumstances Additional Amounts on such
Securities or any of them shall be payable, the notice, if any, to Holders
regarding the determination of interest on a floating rate Security and the
manner of giving such notice, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The City
of New York, the place or places where the principal of, any premium and
interest on or any Additional Amounts with respect to such Securities shall
be payable, any of such Securities that are Registered Securities may be
surrendered for registration of transfer or exchange, any of such
Securities may be surrendered for conversion or exchange and notices or
demands to or upon the Company in respect of such Securities and this
Indenture may be served;
(10) whether any of such Securities are to be redeemable at the option
of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part,
at the option of the Company;
(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;
20
<PAGE>
(16) if the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities are to be payable, at the
election of the Company or a Holder thereof or otherwise, in Dollars or in
a Foreign Currency other than that in which such Securities are stated to
be payable, the date or dates on which, the period or periods within which,
and the other terms and conditions upon which, such election may be made,
and the time and manner of determining the exchange rate between the
Currency in which such Securities are stated to be payable and the Currency
in which such Securities or any of them are to be paid pursuant to such
election, and any deletions from or modifications of or additions to the
terms of this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may
be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to any of such
Securities (whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein), and
whether Section 1008 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
21
<PAGE>
Record Date for such interest, the manner in which, or the Person to whom,
any interest on any Bearer Security of such series shall be payable, if
other than upon presentation and surrender of the Coupons appertaining
thereto as they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Security will be paid if
other than in the manner provided in this Indenture; and
(24) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining to
Bearer Securities of such series shall be substantially identical except as to
Currency of payments due thereunder, denomination and the rate of interest, or
method of determining the rate of interest, if any, Maturity, and the date from
which interest, if any, shall accrue and except as may otherwise be provided by
the Company in or pursuant to the Board Resolution and set forth in the
Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental indenture.
All Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Company as contemplated by this Section 301, a
series may be reopened for issuances of additional Securities of such series or
to establish additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be established by
action taken by or pursuant to a Board Resolution, the Board Resolution shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities shall be payable in Dollars. Unless otherwise provided in or
pursuant to this Indenture, Registered Securities denominated in Dollars shall
be issuable in registered form without Coupons in denominations of $1,000 and
any integral multiple thereof, and the Bearer Securities denominated in Dollars
shall be issuable in the denomination of $5,000. Securities not denominated in
Dollars shall be issuable in such denominations as are established with respect
to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman of
the Board of Directors, its President or one of its Vice Presidents under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. Coupons shall be executed on
22
<PAGE>
behalf of the Company by the Chairman of the Board of Directors, the President,
any Vice President, the Treasurer or any Assistant Treasurer of the Company. The
signature of any of these officers on the Securities or any Coupons appertaining
thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon, an Opinion of
Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons, if
any, have been established in conformity with Sections 201 and 301 of this
Indenture;
(b) all conditions precedent set forth in Sections 201, 301 and 303 of
this Indenture to the authentication and delivery of such Securities and
Coupons, if any, appertaining thereto have been complied with and that such
Securities, and Coupons, when completed by appropriate insertions (if
applicable), executed and attested under the Company's corporate seal by
duly authorized officers of the Company, delivered by duly authorized
officers of the Company to the Trustee for authentication pursuant to this
Indenture, and authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer or other similar laws relating to or affecting
creditors' rights generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law).
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel at the time of issuance
of each Security, but such opinion, with such modifications as counsel shall
deem appropriate, shall be delivered at or before the time of issuance of the
first Security of such series. After any such first delivery, any separate
request by the Company that the Trustee authenticate Securities of such series
for original issue will be deemed to be a certification by the Company that all
conditions precedent provided for in this
23
<PAGE>
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for in Section 202 or 611 executed by or on behalf of the Trustee
or by the Authenticating Agent by the manual signature of one of its authorized
officers. Such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306 or 307 or as may otherwise be
provided in or pursuant to this Indenture, the Trustee shall not authenticate
and deliver any Bearer Security unless all Coupons appertaining thereto then
matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute
and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities are
issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like 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
24
<PAGE>
temporary Registered Security; and provided, further, that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in or pursuant to this Indenture.
Unless otherwise provided in or pursuant to this Indenture with respect to a
temporary global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment. In the event
that the Trustee shall not be or shall cease to be Security Registrar with
respect to a series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. There shall be only
one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at any Office or Agency for such series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series denominated as authorized in or pursuant to this Indenture, of a like
aggregate principal amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities of
any series, at the option of the Holder, Bearer Securities of such series may be
exchanged for Registered Securities of such series containing identical terms,
denominated as authorized in or pursuant to this Indenture and in the same
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in
25
<PAGE>
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 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
26
<PAGE>
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.
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
27
<PAGE>
satisfactory to the Company and the Security Registrar for such Security duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities or repayment of Securities at the Holder's
option, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 905 or 1107, upon repayment in part of any Registered
Security pursuant to Article Thirteen, or upon surrender in part of any
Registered Security for conversion or exchange into Common Stock or other
securities pursuant to its terms, in each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities of like tenor and the same
series under Section 1103 and ending at the close of business on the day of such
selection, or (ii) to register the transfer of or exchange any Registered
Security, or portion thereof, so selected for redemption, except in the case of
any Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be simultaneously
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or 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,
28
<PAGE>
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case any
mutilated, destroyed, lost or stolen Security or Coupon has become or is about
to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or Coupon; provided, however, that payment of
principal of, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen Coupon appertains
shall constitute a separate obligation of the Company, whether or not the
destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, shall (to the
extent lawful) be exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or Coupons.
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name such Security (or one or
more Predecessor Securities) is registered as of the close of business on the
Regular Record Date for such interest. Unless otherwise provided in or pursuant
to this Indenture, in case a Bearer Security is surrendered in exchange for a
Registered Security after the close of business at an Office or Agency for such
Security on any Regular Record Date therefor and before the opening of business
at such Office or Agency on the next succeeding Interest Payment Date therefor,
such Bearer Security shall be surrendered without the 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.
29
<PAGE>
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 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.
30
<PAGE>
(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 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
31
<PAGE>
any Person other than the Trustee, be delivered to the Trustee, and any such
Securities and Coupons, as well as Securities and Coupons surrendered directly
to the Trustee for any such purpose, shall be cancelled promptly by the Trustee.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be cancelled promptly by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by or pursuant to this Indenture. All
cancelled Securities and Coupons held by the Trustee shall be destroyed by the
Trustee, unless by a Company Order the Company directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the
Securities of any series, interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture shall
cease to be of further effect with respect to any series of Securities specified
in such Company Order and any Coupons appertaining thereto, and the Trustee, on
receipt of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of such series and maturing after
such exchange whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and Coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) Coupons appertaining to
Securities of such series called for redemption and maturing after the
relevant Redemption Date whose surrender has been waived as provided
in Section 1107, and (iv) Securities and Coupons of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
32
<PAGE>
(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, 1002 and 1003, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 1004, and with respect to any rights to convert or exchange such
Securities into Common Stock or other securities, shall survive.
33
<PAGE>
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 Section 403. The Company
may exercise its option under this Section 402(2) notwithstanding the prior
exercise of its option under Section 402(3) with respect to such Securities and
any Coupons appertaining thereto.
(3) Upon the Company's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 1006 and 1007 and, to the
extent specified pursuant to Section 301, any other covenant applicable to such
Securities, with respect to such Outstanding Securities and any
34
<PAGE>
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(9) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and Coupons appertaining thereto
shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or
(3) of this Section 402 to any Outstanding Securities of or within a series and
any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Section 402 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining thereto are
then specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto (determined
on the basis of the Currency in which such Securities and Coupons
appertaining thereto are then specified as payable at Stated Maturity or,
if such defeasance or covenant defeasance is to be effected in compliance
with subsection (f) below, on the relevant Redemption Date, as the case may
be) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and premium, if
any) and interest, if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on, and any
Additional Amounts with respect to, 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.
35
<PAGE>
(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 (6) or (7) 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 (6) or (7) 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.
(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
36
<PAGE>
series may only be effected during the last year prior to the final Stated
Maturity of the principal of such Securities.
(h) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee -- collectively for purposes of this Section 402(5) and
Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of
any Outstanding Securities of any series and any Coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent (other
than the Company acting as its own Paying Agent) as the Trustee may determine,
to the Holders of such Securities and any Coupons appertaining thereto of all
sums due and to become due thereon in respect of principal (and premium, if any)
and interest and Additional Amounts, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) 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.
37
<PAGE>
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.
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
38
<PAGE>
(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 in 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 90 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of 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) [acceleration of the maturity of any single outstanding issue of
Indebtedness of the Company or any Restricted Subsidiary with an
outstanding aggregate principal amount in excess of $25,000,000 whether
such Indebtedness now exists or shall hereafter be created (including an
acceleration under this Indenture with respect to Securities of any series
other than the series for which the Event of Default determination is being
made under this Section 501(5)), as a result of an event of default
thereunder, which acceleration continues and is not annulled, or which
Indebtedness is not discharged within 30 days or such longer period of time
during which (i) the Company is contesting in good faith and by appropriate
legal proceedings such acceleration, as evidenced by the delivery to the
Trustee on or prior to such thirtieth day after such acceleration of an
Officers' Certificate to such effect, describing in reasonable detail the
circumstances surrounding such acceleration and such proceedings, or (ii)
the Company is contesting in good faith such acceleration, as evidenced by
the delivery to the Trustee within the thirty day period referred to above
of an Opinion of Counsel indicating that the Company has a reasonable legal
basis for pursuing such contest, and an Officers' Certificate of the type
referred to above (except that no description of legal proceedings need be
given); or
(6) default in payment (after the expiration of any applicable grace
period with respect thereto) of any portion of the principal of, or any
premium with respect to, any single outstanding issue of Indebtedness of
the Company or any Restricted Subsidiary with an outstanding aggregate
principal amount in excess of $25,000,000 whether such Indebtedness now
exists or shall hereafter be created (including such a default under this
Indenture with respect to Securities of any series other than the series
for which the Event of Default determination is being made under this
Section 501(6)) which default is not cured or such Indebtedness is not
discharged within 30 days or such longer period of time during which (i)
the Company is contesting in good faith and by appropriate legal
proceedings such default, as evidenced by the delivery to the Trustee on or
prior to such thirtieth day after such default of an Officers' Certificate
to such effect, describing in reasonable detail the circumstances
surrounding such default and such proceedings, or (ii) the Company is
contesting in good faith such default, as evidenced by the delivery to the
Trustee within the thirty day time period referred to above of an Opinion
of Counsel indicating that the Company has a reasonable legal basis for
pursuing such contest, and an Officers' Certificate of the type referred to
above (except that no description of legal proceedings need be given); or]
39
<PAGE>
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Major Bank
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Major Bank
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Major Bank Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
conservator, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Major Bank Subsidiary or of any substantial
part of the property of the Company or any Major Bank Subsidiary, or
ordering the winding up or liquidation of the affairs of the Company or any
Major Bank Subsidiary, and the continuance of any such decree or order for
relief unstayed and in effect for a period of 60 consecutive days; or
(8) 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 of 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
(9) 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 with respect to Securities of any series at the time
outstanding 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.
40
<PAGE>
At any time after Securities of any series have been accelerated and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
(a) all overdue installments of any interest on any Securities of
such series and any Coupons appertaining thereto which have become due
otherwise then by such declaration of acceleration and any Additional
Amounts with respect thereto,
(b) the principal of and any premium on any Securities of such
series which have become due otherwise than by such declaration of
acceleration and any Additional Amounts with respect thereto and, to
the extent permitted by applicable law, interest thereon at the rate
or rates borne by or provided for in such Securities,
(c) to the extent permitted by applicable law, interest upon
installments of any interest, if any, which have become due otherwise
then by such declaration of acceleration and any Additional Amounts
with respect thereto at the rate or rates borne by or provided for in
such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 606; and
(2) all Events of Default with respect to Securities of such series
other than the non-payment of the principal of, any premium and interest
on, and any Additional Amounts with respect to Securities of such series
which shall have become due solely by such declaration of acceleration,
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 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
41
<PAGE>
(2) default is made in the payment of any principal of or premium, if
any, on, or any Additional Amounts payable in respect of any principal of
or premium, if any, on any Security at its Maturity, or
(3) default is made in the deposit of any sinking fund payment when
due,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent permitted by applicable law, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
of money as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due to the Trustee
under Section 606.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
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
42
<PAGE>
Coupons appertaining thereto and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and of
the Holders of Securities or any Coupons allowed in such judicial
proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of Securities
or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit 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 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,
43
<PAGE>
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;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining thereto
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(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.
44
<PAGE>
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
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
45
<PAGE>
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest on, or
any Additional Amounts with respect to, any Security of such series or any
Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company expressly waives (to the extent
that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, 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.
46
<PAGE>
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (in each
case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence shall be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; and
47
<PAGE>
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts or any sinking fund installment
with respect to, any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
best interest of the Holders of Securities and Coupons of such series; and
provided, further, that in the case of any default of the character specified in
Section 501(4) - 501(9) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
48
<PAGE>
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 as such,
except funds held in trust for the payment of principal of, or premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501(7) or (8) is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law.
"Trustee" for purposes of this Section 606 shall include any predecessor Trustee
but the negligence or bad faith of any Trustee shall not affect the rights of
any other Trustee under this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
(1) There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and
49
<PAGE>
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.
(2) [The following indenture shall be considered specifically described
herein for purposes of clause (i) of the proviso contained in Section 310(b)(1)
of the Trust Indenture Act: Indenture dated as of August 1, 1989 between the
Company and ^, as successor trustee; and, pursuant to Section 310(b)(1)(C)(i) of
the Trust Indenture Act, unless otherwise ordered by the Commission, an event of
default by the Company under this Indenture will not disqualify the Trustee
under this Indenture because it is a trustee under such other indenture.]
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 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
50
<PAGE>
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 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.
51
<PAGE>
(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 confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation
52
<PAGE>
to which the Trustee shall be a party, or any Corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated but not delivered by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to the
Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment, or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a Corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security
53
<PAGE>
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 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.
54
<PAGE>
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 ^ 1 and ^ 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 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.
55
<PAGE>
(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.
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
56
<PAGE>
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, sale, assignment, transfer, lease or conveyance, of all or
substantially all of the properties and assets of the Company to any Person in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such sale, assignment, transfer,
lease or other conveyance is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
and thereafter, except in the case of a lease, the predecessor Person shall be
released from all obligations and covenants under this Indenture, the Securities
and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the Company
(when authorized by or pursuant to a Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
57
<PAGE>
(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
(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
58
<PAGE>
(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[, adversely affect the right of
repayment at the option of any Holder as contemplated by Article Thirteen,]
or change the Place of Payment where or the Currency in which the principal
of, any premium or interest on, or any Additional Amounts with respect to
any Security is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date or, in the
case of repayment at the option of the Holder, on or after the date for
repayment), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or voting,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this
59
<PAGE>
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby, or
(4) 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 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.
60
<PAGE>
Section 906. 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
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served; provided that, if (i) the
Borough of Manhattan, The City of New York is a Place of Payment for the
Securities of any series, (ii) there shall be another Place of Payment for such
Securities in addition to the Borough of Manhattan, The City of New York, and
(iii) all Securities of such series are originally issued solely in the form of
one or more permanent global Securities, then the Company shall not be required
to maintain any such office or agency in the Borough of Manhattan, The City of
New York unless and until all or any portion of such global Securities shall be
exchanged for definitive certificated Securities of such series as contemplated
by the last paragraph of this Section 1002. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
the London Stock Exchange or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company shall maintain a Paying Agent in London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such Office or Agency. If at any time the Company shall
fail to
61
<PAGE>
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 maintain an Office or Agency
in each Place of Payment for Securities of any series for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other Office or
Agency. Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates as the Place of Payment for each series of Securities the
Borough of Manhattan, The City of New York, and [the place (initially ^) 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 as the Company's Office or Agency in the Borough of Manhattan,
The City of New York as the Company's Office or Agency in the Burrough of
Manhattan, The City of New York for such purpose and as Security Registrar. The
Company may subsequently appoint a different Office or Agency in the Borough of
Manhattan, The City of New York and a different Security Registrar for the
Securities of any series.
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
62
<PAGE>
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.
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.
63
<PAGE>
Except as otherwise provided herein or pursuant hereto, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any Security of any series or any Coupon appertaining
thereto and remaining unclaimed for two years after such principal or such
premium or interest or Additional Amount shall have become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security or any
Coupon appertaining thereto shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may, not later than 30 days after the Company's request for such repayment, at
the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment for such series or to be mailed to Holders of
Registered Securities of such series, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing nor shall it be later than
two years after such principal and any premium or interest or Additional Amounts
shall have become due and payable, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to 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
64
<PAGE>
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities or Coupons, and the Company agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory), licenses and franchises; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise if the Board of Directors of the Company determines that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries taken as a whole and that the loss thereof
is not disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
The Company will, and will cause each Restricted Subsidiary to, cause all
its properties used or useful in the conduct of its business to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company or any
Restricted Subsidiary from discontinuing the operation and maintenance of any of
their respective properties if such discontinuance is, in the judgment of the
Board of Directors of the Company or of any Restricted Subsidiary, as the case
may be, desirable in the conduct of its business.
Section 1007. Payment of Taxes and Other Claims.
The Company will, and will cause each Restricted Subsidiary to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon it or upon its income, profits or property, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon its property; provided, however, that neither the Company nor any
Restricted Subsidiary shall be required to pay or discharge or cause to be paid
or discharged any such material tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1002 to 1007, inclusive, 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
65
<PAGE>
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.
Section 1009. 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.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed and, in the event that the Company shall determine that the Securities
of any series to be redeemed shall be selected from Securities of such series
having the same issue date, interest rate or interest rate formula, Stated
Maturity and other terms (the "Equivalent Terms"), the Company shall notify the
Trustee of such Equivalent Terms.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed or if
less than all of the Securities of any series with Equivalent Terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series or from the Outstanding Securities of such series with
Equivalent Terms, as the case may be, not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection
66
<PAGE>
for redemption of portions of the principal amount of Registered Securities of
such series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security of such series not redeemed to
less than the minimum denomination for a Security of such series established
herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock or other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted or exchanged portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(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
67
<PAGE>
or Securities of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Security or portion thereof to be redeemed,
and, if applicable, that interest thereon shall cease to accrue on and
after said date,
(6) the place or places where such Securities, together (in the case
of Bearer Securities) with all Coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and any accrued interest and Additional Amounts
pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all Coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on the Redemption Date pursuant to Section 305 or otherwise, the
last date, as determined by the Company, on which such exchanges may be
made,
(10) in the case of Securities of any series that are convertible or
exchangeable into Common Stock or other securities, the conversion or
exchange price or rate, the date or dates on which the right to convert or
exchange the principal of the Securities of such series to be redeemed will
commence or terminate, as applicable, and the place or places where such
Securities may be surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers
of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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
68
<PAGE>
as provided in Section 1003) an amount of money in the applicable Currency
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date, unless otherwise specified pursuant to
Section 301 for or in the Securities of such series) any accrued interest on and
Additional Amounts with respect thereto, all such Securities or portions thereof
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with,
unless otherwise provided in or pursuant to this Indenture any accrued and
unpaid interest thereon and Additional Amounts with respect thereto to but
excluding the Redemption Date; provided, however, that, except as otherwise
provided in or pursuant to this Indenture or the Bearer Securities of such
series, installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only upon presentation and
surrender of Coupons for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section 1002), and provided,
further, that, except as otherwise specified in or pursuant to this Indenture or
the Registered Securities of such series, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the Regular Record
Dates therefor according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price or, at the option of the
Company, after payment to the Trustee for the benefit of the Company of, an
amount equal to the face amount of all such missing Coupons, or the surrender of
such missing Coupon or Coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that any interest or Additional Amounts represented
by Coupons shall be payable only upon presentation and surrender of those
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.
69
<PAGE>
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
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
70
<PAGE>
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.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount of
Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the Indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the
71
<PAGE>
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, 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.
72
<PAGE>
(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 at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(1), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding
73
<PAGE>
Securities of that series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any consent or waiver
which this Indenture expressly provides may be given by the Holders of at least
66-2/3% in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly convened and at which a quorum
is present as aforesaid only by the affirmative vote of the Holders of at least
66-2/3% in principal amount of the Outstanding Securities of that series; and
provided, further, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not
74
<PAGE>
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 ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * * * *
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.
75
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION
By: _______________________________________
Name: Edward H. Sondker
Title: President and Chief Executive Officer
[SEAL]
Attest:
________________________________
Name: Robert J. Flax
Title: Executive Vice President,
General Counsel and Secretary
^,
as Trustee
By: _______________________________________
Name:
Title:
[SEAL]
Attest:
________________________________
Name:
Title:
76
<PAGE>
Exhibit 4(d)
================================================================================
BAY VIEW CAPITAL CORPORATION,
Issuer
to
^,
Trustee
-----------------
INDENTURE
-----------------
Dated as of ^, 199^
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.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Recitals.................................................................................. 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions............................................................. 2
Section 102. Compliance Certificates and Opinions.................................... 11
Section 103. Form of Documents Delivered to Trustee.................................. 11
Section 104. Acts of Holders......................................................... 12
Section 105. Notices, etc............................................................ 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..................................................... 15
Section 112. Benefits of Indenture................................................... 16
Section 113. Governing Law........................................................... 16
Section 114. Legal Holidays.......................................................... 16
Section 115. Counterparts............................................................ 16
Section 116. Judgment Currency....................................................... 16
Section 117. Immunity of Stockholders, Directors, Officers and Agents of the
Company................................................................. 17
ARTICLE TWO
Securities Forms
Section 201. Forms Generally......................................................... 18
Section 202. Form of Trustee's Certificate of Authentication......................... 18
Section 203. Securities in Global Form............................................... 18
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.................................... 20
Section 302. Currency; Denominations................................................. 24
Section 303. Execution, Authentication, Delivery and Dating.......................... 24
Section 304. Temporary Securities.................................................... 25
Section 305. Registration, Transfer and Exchange..................................... 26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........................ 29
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved....................... 31
Section 308. Persons Deemed Owners................................................... 32
Section 309. Cancellation............................................................ 33
Section 310. Computation of Interest................................................. 33
ARTICLE FOUR
Satisfaction and Discharge of Indenture
Section 401. Satisfaction and Discharge.............................................. 34
Section 402. Defeasance and Covenant Defeasance...................................... 35
Section 403. Application of Trust Money.............................................. 39
Section 404. Effect on Subordination Provisions...................................... 40
ARTICLE FIVE
Remedies
Section 501. Events of Default....................................................... 41
Section 502. Acceleration of Maturity; Rescission and Annulment...................... 42
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee......... 43
Section 504. Trustee May File Proofs of Claim........................................ 44
Section 505. Trustee May Enforce Claims without Possession of Securities or Coupons.. 45
Section 506. Application of Money Collected.......................................... 45
Section 507. Limitations on Suits.................................................... 45
Section 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts................................ 46
Section 509. Restoration of Rights and Remedies...................................... 46
Section 510. Rights and Remedies Cumulative.......................................... 46
Section 511. Delay or Omission Not Waiver............................................ 47
Section 512. Control by Holders of Securities........................................ 47
Section 513. Waiver of Past Defaults................................................. 47
Section 514. Waiver of Stay or Extension Laws........................................ 48
Section 515. Undertaking for Costs................................................... 48
ARTICLE SIX
The Trustee
Section 601. Certain Rights of Trustee............................................... 49
Section 602. Notice of Defaults...................................................... 50
Section 603. Not Responsible for Recitals or Issuance of Securities.................. 50
Section 604. May Hold Securities..................................................... 50
Section 605. Money Held in Trust..................................................... 51
Section 606. Compensation and Reimbursement.......................................... 51
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
Section 607. Corporate Trustee Required; Eligibility................................. 51
Section 608. Resignation and Removal; Appointment of Successor....................... 52
Section 609. Acceptance of Appointment by Successor.................................. 53
Section 610. Merger, Conversion, Consolidation or Succession to Business............. 54
Section 611. Appointment of Authenticating Agent..................................... 55
ARTICLE SEVEN
Holders Lists and Reports by Trustee and Company
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...................................................... 57
Section 704. Reports by Company...................................................... 58
ARTICLE EIGHT
Consolidation, Merger and Sales
Section 801. Company May Consolidate, Etc............................................ 59
Section 802. Successor Person Substituted for Company................................ 59
ARTICLE NINE
Supplemental Indentures
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
Section 1001. Payment of Principal, Premium, Interest and Additional Amounts.......... 64
Section 1002. Maintenance of Office or Agency......................................... 64
Section 1003. Money for Securities Payments to Be Held in Trust....................... 66
Section 1004. Additional Amounts...................................................... 67
Section 1005. Corporate Existence..................................................... 68
Section 1006. Company Statement as to Compliance...................................... 68
Section 1007. Waiver of Certain Covenants............................................. 68
</TABLE>
iii
<PAGE>
ARTICLE ELEVEN
Redemption of Securities
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1101. Applicability of Article................................................ 69
Section 1102. Election to Redeem; Notice to Trustee................................... 69
Section 1103. Selection by Trustee of Securities to be Redeemed....................... 69
Section 1104. Notice of Redemption.................................................... 70
Section 1105. Deposit of Redemption Price............................................. 71
Section 1106. Securities Payable on Redemption Date................................... 71
Section 1107. Securities Redeemed in Part............................................. 72
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article................................................ 73
Section 1202. Satisfaction of Sinking Fund Payments with Securities................... 73
Section 1203. Redemption of Securities for Sinking Fund............................... 74
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article................................................ 75
ARTICLE FOURTEEN
Securities in Foreign Currencies
Section 1401. Applicability of Article................................................ 76
ARTICLE FIFTEEN
Meetings of Holders of Securities
Section 1501. Purposes for Which Meetings May Be Called............................... 77
Section 1502. Call, Notice and Place of Meetings...................................... 77
Section 1503. Persons Entitled to Vote at Meetings.................................... 77
Section 1504. Quorum; Action.......................................................... 78
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings..... 78
Section 1506. Counting Votes and Recording Action of Meetings......................... 79
</TABLE>
iv
<PAGE>
ARTICLE SIXTEEN
Subordination of Securities
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1601. Agreement to Subordinate................................................ 81
Section 1602. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities............................................... 81
Section 1603. No Payment on Securities in Event of Default on Senior Indebtedness..... 83
Section 1604. Payments on Securities Permitted........................................ 83
Section 1605. Authorization of Holders to Trustee to Effect Subordination............. 83
Section 1606. Notices to Trustee...................................................... 83
Section 1607. Trustee as Holder of Senior Indebtedness................................ 84
Section 1608. Modifications of Terms of Senior Indebtedness........................... 84
Section 1609. Reliance on Judicial Order or Certificate of Liquidating Agent.......... 85
</TABLE>
v
<PAGE>
INDENTURE, dated as of ^, 199^ (the "Indenture"), among BAY VIEW CAPITAL
CORPORATION, a corporation duly organized and existing under the laws of State
of Delaware (hereinafter called the "Company"), having its principal executive
office located at 1840 Gateway Drive, San Mateo, California 94404, and ^, a
banking association duly organized and existing under the laws of the United
States of America (hereinafter called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidences of Indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as herein defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
or of any series thereof and any Coupons (as herein defined) as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the terms
"generally accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act", when used with respect to any Holders, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required hereby
or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes, assessments or other governmental
charges imposed on Holders specified therein and which are owing to such
Holders.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such specified Person and any legal or beneficial owner,
directly or indirectly, of 20% or more of the total voting power of all
outstanding Voting Stock of such specified Person. Notwithstanding the
foregoing, no Securitization Entity shall be deemed an Affiliate of the Company.
The term "Affiliated" has a meaning correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 611 to act on behalf of the Trustee to authenticate Securities of one
or more series.
2
<PAGE>
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, delivered to the Trustee.
"Business Day" means, with respect to the Securities of any series unless
otherwise specified pursuant to Section 301 with respect to such Securities, any
day other than a Saturday, Sunday or other day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or executive
order to close; provided that such term shall mean, with respect to any Place of
Payment for such Securities of any series, unless otherwise specified with
respect to such Securities pursuant to Section 301, any day other than a
Saturday, Sunday or other day on which banking institutions in such Place of
Payment are authorized or obligated by law, regulation or executive order to
close.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights or other equivalents (however designated) in the equity
of such Person (including, without limitation, with respect to a corporation,
common stock, preferred stock and other capital stock, with respect to a
partnership, partnership interests, whether general or limited, and, with
respect to a limited liability company, limited liability company interests) and
any rights (other than debt securities convertible into or exchangeable or
exercisable for equity interests), warrants or options exchangeable or
exercisable for or convertible into an equity interest in such Person.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
3
<PAGE>
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person, and any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a written request
or order, as the case may be, signed in the name of the Company by the Chairman
of the Board of Directors, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through ownership of voting securities (or pledge of voting securities
if the pledgee thereof may on the date of determination exercise or control the
exercise of the voting rights of the owner of such voting securities), by
contract or otherwise; and the terms "Controlling" and "Controlled" have
meanings correlative to the foregoing.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means 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 .
"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.
4
<PAGE>
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European Community.
"European Union" means the European Community, the European Coal and Steel
Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such government.
"GAAP" means such accounting principles as are generally accepted in the
United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the other government or governments in the
confederation which issued the Foreign Currency in which the principal of or any
premium or interest on the relevant Security or any Additional Amounts in
respect thereof shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of such government or
governments or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America or such
other government or governments, in each case where the timely payment or
payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder", in the case of any Registered Security, means the Person in whose
name such Security is registered in the Security Register and, in the case of
any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security 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
5
<PAGE>
independent public accountants regularly retained by the Company or who may be
other independent public accountants. Such accountants or firm shall be entitled
to rely upon any Opinion of Counsel as to the interpretation of any legal
matters relating to this Indenture or certificates required to be provided
hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", with respect to any Original Issue Discount Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holidays" has the meaning specified in Section 114.
"Major Bank Subsidiary" means (i) Bay View Bank, a federal savings bank,
and any successor to all or substantially all of the business of Bay View Bank,
a federal savings bank, in each case so long as it shall be a Subsidiary of the
Company and (ii) any Significant Subsidiary of the Company which is a bank,
trust company, savings bank, savings and loan association, savings association
or other banking or thrift institution.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes a Redemption Date
for such Security.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, that complies
with the requirements of Section 314(e) of the Trust Indenture Act and is
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
6
<PAGE>
"Original Issue Discount Security" means a Security issued pursuant to this
Indenture which provides for declaration of an amount less than the principal
face amount thereof to be due and payable upon acceleration pursuant to Section
502.
"Outstanding", when used with respect to any Securities, means, as of the
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant
hereto (other than pursuant to Section 402) with the Trustee or
any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and
any Coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except
to the extent provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof satisfactory
to it that such Security is held by a bona fide purchaser in
whose hands such Security is a valid obligation of the Company;
and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities, if the terms of
such Security provide for such conversion or exchange pursuant to
Section 301;
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
7
<PAGE>
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
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.
8
<PAGE>
"Regular Record Date" for the interest payable on any Registered Security
on any Interest Payment Date therefor means the date, if any, specified in or
pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer or employee of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securitization Entity" means any pooling arrangement or entity (except for
any entity in corporate or partnership form) formed or originated for the
purpose of holding, and issuing securities representing interests in, one or
more pools of mortgages, leases, credit card receivables, home equity loan
receivables, automobile loans, leases or installment sales contracts, other
consumer receivables or other financial assets of the Company or any of its
Subsidiaries, and shall include, without limitation, any grantor trust, owner's
trust or real estate mortgage investment conduit.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means (a) any liability of the Company (1) for
borrowed money or under any reimbursement obligation relating to a letter of
credit, surety bond or similar instrument, or (2) evidenced by a bond, note,
debenture or similar instrument, or (3) for obligations to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, or (4) for the payment of money relating to a
capitalized lease obligation, or (5) for the payment of money under any Swap
Agreement; (b) any liability of others described in the preceding clause (a)
that the Company has guaranteed or that is otherwise its legal liability; and
(c) any deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above, unless, in the instrument creating or
evidencing any such liability referred to in clause (a) or (b) above or any such
deferral, renewal, extension or refunding referred to in clause (c) above or
pursuant to which the same is outstanding, it is expressly provided that such
liability, deferral, renewal, extension or refunding is not senior or prior in
right of payment to the Securities or ranks pari passu with or subordinate to
the Securities in right of payment; and provided that the Securities shall not
constitute Senior Indebtedness.
"Significant Subsidiary" means, with respect to any Person, any Subsidiary
of such Person which is a "significant subsidiary" as defined in Rule 1-02 (w)
of Regulation S-X
9
<PAGE>
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 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.
10
<PAGE>
"United States Person" means, unless otherwise specified with respect to
any Debt Securities pursuant to Section 301, any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States, any estate the income of which is
subject to United States federal income taxation regardless of its source, or
any trust whose administration is subject to the primary supervision of a United
States court and which has one or more United States fiduciaries who have the
authority to control all substantial decisions of the trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, unless otherwise provided with respect to any Security,
any successor to such Person. If at any time there is more than one such
Person, "U.S. Depository" or "Depository" shall mean, with respect to any
Securities, the qualifying entity which has been appointed with respect to such
Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means, with respect to any Person, any class or classes or
series or series of Capital Stock of such Person pursuant to which the holders
thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not, at the time, Capital Stock of any other class
or classes or series or series shall have, or might have, voting power by reason
of the happening of any contingency).
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this Indenture,
upon any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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
11
<PAGE>
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by or pursuant to this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
made, given or taken by Holders of Securities of such series may, alternatively,
be embodied in and evidenced by the record of Holders of Securities of such
series voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
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
12
<PAGE>
interests in any such global Security through such U.S. Depository's standing
instructions and customary practices.
(2) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer Securities
held by any Person, and the date of the commencement and the date of the
termination of holding the same, may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by any trust company,
bank, banker or other depositary reasonably acceptable to the Company, wherever
situated, if such certificate shall be deemed by the Company and the Trustee to
be satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Company and the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or 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
13
<PAGE>
Holder of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee, any Security Registrar, any Paying Agent or the Company
in reliance thereon, whether or not notation of such Act is made upon such
Security.
Section 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to the attention of its Treasurer, at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not earlier
than the earliest date and the second such publication not later than the
latest date prescribed for the giving of such notice.
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
14
<PAGE>
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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.
15
<PAGE>
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent and their successors hereunder, the holders of Senior
Indebtedness and the Holders of Securities or Coupons, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
State.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that specifically states
that such provision shall apply in lieu hereof) payment need not be made at such
Place of Payment on such date but such payment may be made on the next
succeeding day that is a Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or at the Stated
Maturity or Maturity, and no interest shall accrue on the amount payable on such
date or at such time for the period from and after such Interest Payment Date,
Stated Maturity or Maturity, as the case may be, to the next succeeding Business
Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding 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
16
<PAGE>
the Required Currency so expressed to be payable and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For
purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or obligated by law,
regulation or executive order to be closed. The provisions of this Section 116
shall not be applicable with respect to any payment due on a Security which is
payable in Dollars.
Section 117. Immunity of Stockholders, Directors, Officers and Agents of
the Company.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any past, present or future stockholder, employee,
officer or director, as such, of the Company or of any predecessor or successor,
either directly or through the Company or any predecessor or successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issue of the
Securities.
17
<PAGE>
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
18
<PAGE>
and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the amount,
or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby shall be made in such manner and
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered pursuant to Section 303 or 304 with respect thereto. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise specified
in or pursuant to this Indenture or any Securities, payment of principal of, any
premium and interest on, and any Additional Amounts in respect of any Security
in temporary or permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 301.
19
<PAGE>
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 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);
20
<PAGE>
(6) if any of such Securities are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer Security
in global form payable in respect of an Interest Payment Date therefor
prior to the exchange, if any, of such temporary Bearer Security for
definitive Securities shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear interest, if
any, or the method or methods, if any, by which such rate or rates are to
be determined, the date or dates, if any, from which such interest shall
accrue or the method or methods, if any, by which such date or dates are to
be determined, the Interest Payment Dates, if any, on which such interest
shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date, whether and
under what circumstances Additional Amounts on such Securities or any of
them shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The City
of New York, the place or places where the principal of, any premium and
interest on or any Additional Amounts with respect to such Securities shall
be payable, any of such Securities that are Registered Securities may be
surrendered for registration of transfer or exchange, any of such
Securities may be surrendered for conversion or exchange and notices or
demands to or upon the Company in respect of such Securities and this
Indenture may be served;
(10) whether any of such Securities are to be redeemable at the option
of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part,
at the option of the Company;
(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;
21
<PAGE>
(13) whether the Securities of the series will be convertible into
shares of Common Stock and/or exchangeable for other securities, and if so,
the terms and conditions upon which such Securities will be so convertible
or exchangeable, and any deletions from or modifications or additions to
this Indenture to permit or to facilitate the issuance of such convertible
or exchangeable Securities or the administration thereof;
(14) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment of
the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities are to be payable, at the
election of the Company or a Holder thereof or otherwise, in Dollars or in
a Foreign Currency other than that in which such Securities are stated to
be payable, the date or dates on which, the period or periods within which,
and the other terms and conditions upon which, such election may be made,
and the time and manner of determining the exchange rate between the
Currency in which such Securities are stated to be payable and the Currency
in which such Securities or any of them are to be paid pursuant to such
election, and any deletions from or modifications of or additions to the
terms of this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may
be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(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;
22
<PAGE>
(20) if any of such Securities are to be issuable upon the exercise of
warrants, and the time, manner and place for such Securities to be
authenticated and delivered;
(21) if any of such Securities are to be issuable in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the form and
terms of such certificates, documents or conditions;
(22) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying
Agent or Authenticating Agent with respect to such Securities;
(23) the Person to whom any interest on any Registered Security of
such series shall be payable, if other than the Person in whose name the
Registered Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer Security
of such series shall be payable, if other than upon presentation and
surrender of the Coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest payable on a
temporary global Security will be paid if other than in the manner provided
in this Indenture; and
(24) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining to
Bearer Securities of such series shall be substantially identical except as to
Currency of payments due thereunder, denomination and the rate of interest, or
method of determining the rate of interest, if any, Maturity, and the date from
which interest, if any, shall accrue and except as may otherwise be provided by
the Company in or pursuant to the Board Resolution and set forth in the
Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental 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.
23
<PAGE>
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities shall be payable in Dollars. Unless otherwise provided in or
pursuant to this Indenture, Registered Securities denominated in Dollars shall
be issuable in registered form without Coupons in denominations of $1,000 and
any integral multiple thereof, and the Bearer Securities denominated in Dollars
shall be issuable in the denomination of $5,000. Securities not denominated in
Dollars shall be issuable in such denominations as are established with respect
to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman of
the Board of Directors, its President or one of its Vice Presidents under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. Coupons shall be executed on behalf of the Company by
the Chairman of the Board of Directors, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company. The signature of any of
these officers on the Securities or any Coupons appertaining thereto may be
manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under 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
24
<PAGE>
Indenture, and authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer or other similar laws relating to or affecting
creditors' rights generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law).
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel at the time of issuance
of each Security, but such opinion, with such modifications as counsel shall
deem appropriate, shall be delivered at or before the time of issuance of the
first Security of such series. After any such first delivery, any separate
request by the Company that the Trustee authenticate Securities of such series
for original issue will be deemed to be a certification by the Company that all
conditions precedent provided for in this Indenture relating to authentication
and delivery of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for in Section 202 or 611 executed by or on behalf of the Trustee
or by the Authenticating Agent by the manual signature of one of its authorized
officers. Such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306 or 307 or as may otherwise be
provided in or pursuant to this Indenture, the Trustee shall not authenticate
and deliver any Bearer Security unless all Coupons appertaining thereto then
matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute
and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
25
<PAGE>
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities are
issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for 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.
26
<PAGE>
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities of
any series, at the option of the Holder, Bearer Securities of such series may be
exchanged for Registered Securities of such series containing identical terms,
denominated as authorized in or pursuant to this Indenture and in the same
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered 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
27
<PAGE>
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 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
28
<PAGE>
Special Record Date for such Security and before the opening of business at such
Office or Agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but shall be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global Security shall
be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities or repayment of Securities at the Holder's
option, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 905 or 1107, upon repayment in part of any Registered
Security pursuant to Article Thirteen, or upon surrender in part of any
Registered Security for conversion or exchange into Common Stock or other
securities pursuant to its terms, in each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities 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
29
<PAGE>
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with Coupons
appertaining thereto corresponding to the Coupons, if any, appertaining to the
surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case any
mutilated, destroyed, lost or stolen Security or Coupon has become or is about
to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or Coupon; provided, however, that payment of
principal of, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed 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.
30
<PAGE>
Section 307. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name such Security (or one or
more Predecessor Securities) is registered as of the close of business on the
Regular Record Date for such interest. Unless otherwise provided in or pursuant
to this Indenture, in case a Bearer Security is surrendered in exchange for a
Registered Security after the close of business at an Office or Agency for such
Security on any Regular Record Date therefor and before the opening of business
at such Office or Agency on the next succeeding Interest Payment Date therefor,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date and interest shall not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on 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,
31
<PAGE>
The City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered Security
after the close of business at such Office or Agency on any Special Record
Date and before the opening of business at such Office or Agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Defaulted
Interest and Defaulted Interest shall not be payable on such proposed date
of payment in respect of the Registered Security issued in exchange for
such Bearer Security, but shall be payable only to the Holder of such
Coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States.
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
32
<PAGE>
purposes whatsoever, whether or not any payment with respect to such Security or
Coupon shall be overdue, and neither the Company, the Trustee or any agent of
the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
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.
33
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture shall
cease to be of further effect with respect to any series of Securities specified
in such Company Order and any Coupons appertaining thereto, and the Trustee, on
receipt of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange
for Registered Securities of such series and maturing after such exchange
whose surrender is not required or has been waived as provided in Section
305, (ii) Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
306, (iii) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date whose surrender
has been waived as provided in Section 1106, and (iv) Securities and
Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or (ii)
below, if applicable, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the 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
34
<PAGE>
and any Coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation, including the principal of, any premium and
interest on, and any Additional Amounts with respect to, such Securities
and any Coupons appertaining thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Maturity
thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 606 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 305, 306, 403, 404, 1002 and 1003, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 1004, and with respect to any rights to convert or exchange such
Securities into Common Stock or other securities, shall survive.
Section 402. Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i) defeasance of
the Securities of or within a series under clause (2) of this Section 402 or
(ii) covenant defeasance of the Securities of or within a series under clause
(3) of this Section 402 shall not be applicable with respect to the Securities
of such series, then such provisions, together with the other provisions of this
Section 402 (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any Coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Securities and any
Coupons appertaining thereto, elect to have Section 402(2) or 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
35
<PAGE>
deemed to be "Outstanding" only for the purposes of clause (5) of this Section
402 and the other Sections of this Indenture referred to in clauses (i) and (ii)
of this paragraph, and to have satisfied all of its other obligations under such
Securities and any Coupons appertaining thereto and this Indenture insofar as
such Securities and any Coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company , shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities and any Coupons appertaining thereto to receive, solely
from the trust fund described in clause (4) of this Section 402 and as more
fully set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest, if any, on, and Additional Amounts, if any, with
respect to, such Securities and any Coupons appertaining thereto when such
payments are due, and any rights of such Holder to convert or exchange such
Securities into Common Stock or other securities, (ii) the obligations of the
Company and the Trustee with respect to such Securities under Sections 305, 306,
1002 and 1003, with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1004, and with respect to any rights
to convert or exchange such Securities into Common Stock or other securities,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Section 402 and Sections 403 and 404. The Company may exercise its
option under this Section 402(2) notwithstanding the prior exercise of its
option under Section 402(3) with respect to such Securities and any Coupons
appertaining thereto.
(3) Upon the Company's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
shall be released from its obligations under Section 1005 (other than the
Company's obligation to preserve and keep in full force and effect its corporate
existence pursuant to Section 1005) and, to the extent specified pursuant to
Section 301, any other covenant applicable to such Securities, with respect to
such Outstanding Securities and any Coupons appertaining thereto on and after
the date the conditions set forth in clause (4) of this Section 402 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
Coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with any such
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any Coupons appertaining thereto, the Company
may omit to comply with, and shall have no liability in respect of, any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such 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:
36
<PAGE>
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Section 402 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining thereto are
then specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto (determined
on the basis of the Currency in which such Securities and Coupons
appertaining thereto are then specified as payable at Stated Maturity or,
if such defeasance or covenant defeasance is to be effected in compliance
with subsection (f) below, on the relevant Redemption Date, as the case may
be) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and premium, if
any) and interest, if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on, such
Outstanding Securities and any Coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest or the
applicable Redemption Date, as the case may be, and (z) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities and any Coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any
Major Bank Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and
any Coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit, 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
37
<PAGE>
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.
(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
38
<PAGE>
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4) of this Section 402 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations deposited with the Trustee pursuant to Section 401 or
402 shall be held in trust and applied by it, in accordance with the provisions
of the Securities, the Coupons and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled 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.
39
<PAGE>
Section 404. Effect on Subordination Provisions.
Unless otherwise expressly provided pursuant to Section 301 with respect to
the Securities of any series, the provisions for subordination of the Securities
set forth in Article Sixteen hereof are hereby expressly made subject to the
provisions for satisfaction and discharge set forth in Section 401 hereof and
the provisions for defeasance and covenant defeasance set forth in Section 402
hereof and, anything herein to the contrary notwithstanding, upon the
effectiveness of such satisfaction and discharge pursuant to Section 401 or any
such defeasance or covenant defeasance pursuant to Section 402 with respect to
the Securities of any series, such Securities shall thereupon cease to be so
subordinated and shall no longer be subject to the provisions of Article Sixteen
hereof and, without limitation to the foregoing, all moneys, Government
Obligations and other securities or property deposited with the Trustee (or
other qualifying trustee) in trust in connection with such satisfaction and
discharge, defeasance or covenant defeasance, as the case may be, and all
proceeds therefrom may be applied to pay the principal of, premium, if any, and
interest, if any, on, and Additional Amounts, if any, with respect to the
Securities of such series as and when the same shall become due and payable
notwithstanding the provisions of Article Sixteen.
40
<PAGE>
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest on, or any Additional Amounts
payable in respect of any interest on, any Security of such series or any Coupon
appertaining thereto when such interest or such Additional Amounts, as the case
may be, become due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of any principal of or premium, if any, on, or
any Additional Amounts payable in respect of any principal of or premium, if
any, on, any Security of such series when due upon Maturity; or
(3) default in the deposit of any sinking fund payment when due with
respect to any Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture or any Security of such series (other than a
covenant or warranty for which the consequences of breach or nonperformance are
addressed elsewhere in this Section 501 or a covenant or warranty which has
expressly been included in this Indenture or a Security of that series, whether
or not by means of a supplemental indenture, solely for the benefit of
Securities of a series other than such series), and continuance of such default
or breach for a period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of such series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry by a court or, in the case of any Major Bank Subsidiary, any
court or governmental or other supervisory authority having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company or any
Major Bank Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company or any Major Bank Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company or any Major Bank Subsidiary under any applicable Federal or State law,
or appointing a custodian,
41
<PAGE>
receiver, conservator, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Major Bank Subsidiary or of any
substantial part of the property of the Company or any Major Bank Subsidiary, or
ordering the winding up or liquidation of the affairs of the Company or any
Major Bank Subsidiary, and the continuance of any such decree or order for
relief unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company or any Major Bank Subsidiary of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company or any Major Bank Subsidiary to the entry of a decree or order for
relief in respect of the Company or any Major Bank Subsidiary in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any Major Bank Subsidiary,
or the filing by the Company or any Major Bank Subsidiary of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company or any Major Bank Subsidiary to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, conservator, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Major Bank Subsidiary or any substantial
part of the property of the Company or any Major Bank Subsidiary, or the making
by the Company or any Major Bank Subsidiary of an assignment for the benefit of
creditors, or the taking of corporate action by the Company or any Major Bank
Subsidiary in furtherance of any such action; or
(7) any other Event of Default provided in or pursuant to this Indenture
with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default as described in Section 501[(5) or 501(6)] occurs
and is continuing, then either the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities of any series may declare the
principal of all the Securities of such series, or such lesser amount as may be
provided for in the Securities of such series, and accrued and unpaid interest,
if any, thereon to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or such lesser amount, as the case may be, and such
accrued and unpaid interest shall become immediately due and payable.
At any time after Securities of any series have been accelerated and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
42
<PAGE>
(a) all overdue installments of any interest on any Securities of such
series and any Coupons appertaining thereto which have become due otherwise
then by such declaration of acceleration and any Additional Amounts with
respect thereto,
(b) the principal of and any premium on any Securities of such series
which have become due otherwise than by such declaration of acceleration
and any Additional Amounts with respect thereto and, to the extent
permitted by applicable law, interest thereon at the rate or rates borne by
or provided for in such Securities,
(c) to the extent permitted by applicable law, interest upon
installments of any interest, if any, which have become due otherwise then
by such declaration of acceleration and any Additional Amounts with respect
thereto at the rate or rates borne by or provided for in such Securities,
and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee under
Section 606; and
(2) all Events of Default under Sections 501(5) and 501(6) with respect to
Securities of such series shall have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on, or any Additional
Amounts payable in respect of any interest on, any Security or any Coupon
appertaining thereto when such interest or Additional Amounts, as the case may
be, shall have become due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of any principal of or premium, if any,
on, or any Additional Amounts payable in respect of any principal of or premium,
if any, on, any Security at its Maturity, or
(3) default is made in the deposit of any sinking fund payment when due,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent permitted by applicable law, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
of money as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due to the Trustee
under Section 606.
43
<PAGE>
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and any Coupons appertaining thereto and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the 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.
44
<PAGE>
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.
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;
45
<PAGE>
(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.
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
46
<PAGE>
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
(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.
47
<PAGE>
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company expressly waives (to the extent
that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 515. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, 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.
48
<PAGE>
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (in each
case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence shall be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; and
49
<PAGE>
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts or any sinking fund installment
with respect to, any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
best interest of the Holders of Securities and Coupons of such series; and
provided, further, that in the case of any default of the character specified in
Section 501(4) or 501(7) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
50
<PAGE>
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 as such,
except funds held in trust for the payment of principal of, or premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501(5) or 501(6) is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law.
"Trustee" for purposes of this Section 606 shall include any predecessor Trustee
but the negligence or bad faith of any Trustee shall not affect the rights of
any other Trustee under this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
(1) There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and
51
<PAGE>
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 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
52
<PAGE>
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 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
53
<PAGE>
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 confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
54
<PAGE>
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 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.
55
<PAGE>
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 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.
56
<PAGE>
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 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.
57
<PAGE>
(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.
58
<PAGE>
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.
59
<PAGE>
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
60
<PAGE>
(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, 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
61
<PAGE>
(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 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.
62
<PAGE>
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.
63
<PAGE>
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and Additional
Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served; provided that, if (i) the
Borough of Manhattan, The City of New York is a Place of Payment for the
Securities of any series, (ii) there shall be another Place of Payment for such
Securities in addition to the Borough of Manhattan, The City of New York, and
(iii) all Securities of such series are originally issued solely in the form of
one or more permanent global Securities, then the Company shall not be required
to maintain any such office or agency in the Borough of Manhattan, The City of
New York unless and until all or any portion of such global Securities shall be
exchanged for definitive certificated Securities of such series as contemplated
by the last paragraph of this Section 1002. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
the London Stock Exchange or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company shall maintain a Paying Agent in London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such Office or Agency. If at any time the Company shall
fail to maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified for
the purpose with respect to such Securities as provided in or pursuant to this
64
<PAGE>
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 maintain an Office or Agency
in each Place of Payment for Securities of any series for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other Office or
Agency. Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates as the Place of Payment for each series of Securities the
Borough of Manhattan, The City of New York, and the place (initially ^) 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.
65
<PAGE>
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on, or any Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal or any premium, interest or Additional Amounts so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it shall, on or prior to each due date of the principal of, or any
premium or interest on, or any Additional Amounts with respect to any Securities
of such series, deposit with any Paying Agent a sum (in the Currency or
Currencies described in the preceding paragraph) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due, such sum to be
held in trust for the benefit of the Persons entitled thereto, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any payment of
principal, any premium or interest on or any Additional Amounts with respect to
the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any Security 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
66
<PAGE>
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security or
any Coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may, not later than 30 days after the Company's request for such
repayment, at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment for such series or to be mailed to
Holders of Registered Securities of such series, or both, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing nor shall it be
later than two years after such principal and any premium or interest or
Additional Amounts shall have become due and payable, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company shall
furnish to the Trustee and the principal Paying Agent or Paying Agents, if other
than the Trustee, an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and premium,
if any, or interest, if any, on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent 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
67
<PAGE>
of or in connection with actions taken or omitted by any of them in reliance on
any Officers' Certificate furnished pursuant to this Section.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory), licenses and franchises; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise if the Board of Directors of the Company determines that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries taken as a whole and that the loss thereof
is not disadvantageous in any material respect to the Holders.
Section 1006. Company Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating whether or not, to the best of his or her knowledge, the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
he or she may have knowledge.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1005 with respect to the Securities
of any series and, if expressly provided pursuant to Section 301(18), any
additional covenants applicable to the Securities of such series if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series, by Act of such Holders, either
shall waive such compliance in such instance or generally shall have waived
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
68
<PAGE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed and, in the event that the Company shall determine that the Securities
of any series to be redeemed shall be selected from Securities of such series
having the same issue date, interest rate or interest rate formula, Stated
Maturity and other terms (the "Equivalent Terms"), the Company shall notify the
Trustee of such Equivalent Terms.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed or if
less than all of the Securities of any series with Equivalent Terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series or from the Outstanding Securities of such series with
Equivalent Terms, as the case may be, not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions of the principal amount of
Registered Securities of such series; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock or other securities in part before
termination of the conversion or exchange right with respect to the
69
<PAGE>
portion of the Security so selected, the converted or exchanged portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted or exchanged during a selection
of Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder of such Security will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due and
payable upon each such Security or portion thereof to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities, together (in the case of
Bearer Securities) with all Coupons appertaining thereto, if any, maturing after
the Redemption Date, are to be surrendered for payment of the Redemption Price
and any accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(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
70
<PAGE>
deducted from the Redemption Price, unless security or indemnity satisfactory to
the Company, the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible or
exchangeable into Common Stock or other securities, the conversion or exchange
price or rate, the date or dates on which the right to convert or exchange the
principal of the Securities of such series to be redeemed will commence or
terminate, as applicable, and the place or places where such Securities may be
surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers of
such Securities, if any (or any other numbers used by a Depository to identify
such Securities).
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with respect
to the Securities of any series called for redemption pursuant to Section 1104,
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the applicable Currency sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date, unless
otherwise specified pursuant to Section 301 for or in the Securities of such
series) any accrued interest on and Additional Amounts with respect thereto, all
such Securities or portions thereof which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the 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
71
<PAGE>
Date; provided, however, that, except as otherwise provided in or pursuant to
this Indenture or the Bearer Securities of such series, installments of interest
on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of Coupons for such
interest (at an Office or Agency located outside the United States except as
otherwise provided in Section 1002), and provided, further, that, except as
otherwise specified in or pursuant to this Indenture or the Registered
Securities of such series, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates therefor
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price, or, at the option of the
Company, after payment to the Trustee for the benefit of the Company of, an
amount equal to the face amount of all such missing Coupons, or the surrender of
such missing Coupon or Coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that any interest or Additional Amounts represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an Office or Agency for such Security located outside of the United
States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or, if no rate is prescribed therefor in the Security, at the rate of
interest, if any, borne by such Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the 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.
72
<PAGE>
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities, (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly. If as a result of the delivery or credit of Securities
of any series in lieu of cash payments pursuant to this Section 1202, the
principal amount of Securities of such series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such series for redemption, except upon Company Request, and
such cash payment shall be held by the Trustee or a Paying Agent and applied to
the next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall at the request of the Company from time to time pay over
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.
73
<PAGE>
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.
74
<PAGE>
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount of
Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Section
1301, in connection with any repayment of Securities, the Company may arrange
for the purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
75
<PAGE>
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.
76
<PAGE>
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution)
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of or made
the first publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 106) or shall
not thereafter proceed to cause the meeting to be held as provided herein, then
the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (1) of
this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
77
<PAGE>
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(1), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of at least 66-2/3% in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
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
78
<PAGE>
such series in regard to proof of the holding of Securities of such series and
of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or by having the
signature of the person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. If
the Securities of such series are issuable in minimum denominations of less than
$1,000, then a Holder of such a Security in a principal amount of less than
$1,000 shall be entitled to a fraction of one vote which is equal to the
fraction that the principal amount of such Security bears to $1,000. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at 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
79
<PAGE>
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
80
<PAGE>
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
Section 1601. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and agrees,
and each Holder of Securities by his acceptance thereof, likewise covenants and
agrees, that the payment of the principal of, premium, if any, and interest, if
any, on, and Additional Amounts, if any, in respect of each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 1602. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Securities and the holders thereof by a lawful plan of
reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be entitled to
receive payment in full of the principal thereof (and premium, if any) and
interest due thereon (or to have such payment duly provided for) before the
Holders of the Securities are entitled to receive any payment upon the
principal (or premium, if any) or interest, if any, on, or Additional
Amounts, if any, in respect of the indebtedness evidenced by the
Securities; and
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders
of the Securities or the Trustee would be entitled except for the
provisions of this Article Sixteen shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of (and premium, if any) and interest on the
Senior Indebtedness held or represented by each to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; and
81
<PAGE>
(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.
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.
82
<PAGE>
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.
Section 1606. Notices to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities pursuant to this Article Sixteen. Failure
to give such notice shall not affect the subordination of the Securities to
Senior Indebtedness. Notwithstanding the provisions of this Article Sixteen or
any other provisions of this Indenture, neither the Trustee nor any Paying Agent
(other than the Company) shall be charged with knowledge of the existence of any
Senior Indebtedness or of any event which would prohibit the making of any
payment of moneys to or by the Trustee or such Paying Agent, unless and until
the Trustee or such Paying Agent shall
83
<PAGE>
have received (in the case of the Trustee, at its Corporate Trust Office)
written notice thereof from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee; provided, however, that if at least two Business Days
prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of either
the principal of (or premium, if any) or interest, if any, on any Security) the
Trustee shall not have received with respect to such moneys the notice provided
for in this Section 1606, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
moneys and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date. The Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such a notice has been given by a holder of Senior Indebtedness
or a trustee on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness (or a trustee on behalf
of such holder) to participate in any payment or distribution pursuant to this
Article Sixteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person (or the amount of Senior Indebtedness as to which such
Person is trustee), the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Sixteen and, if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 1607. Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Sixteen in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior Indebtedness
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.
Nothing in this Article Sixteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
Section 1608. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness
or the exercise by the holders of Senior Indebtedness of any of their rights
under any instrument creating or evidencing Senior Indebtedness, including,
without limitation, the waiver of default thereunder, may be made or done all
without notice to or assent from the Holders of the Securities or the Trustee.
To the extent permitted by applicable law, no compromise, alteration,
amendment, modification, extension, renewal or other change of, or waiver,
consent or other action in respect of, any liability or obligation under or in
respect of any Senior Indebtedness, or any of the terms, covenants or conditions
of any indenture or other instrument under which any Senior
84
<PAGE>
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.
85
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION
By: _____________________________________________
Name: Edward H. Sondker
Title: President and Chief Executive Officer
[SEAL]
Attest:
_____________________________________
Name: Robert J. Flax
Title: Executive Vice President,
General Counsel and Secretary
^,
as Trustee
By: _____________________________________________
Name:
Title:
[SEAL]
Attest:
_____________________________________
Name:
Title:
86
<PAGE>
Exhibit 4(e)
================================================================================
BAY VIEW CAPITAL CORPORATION,
Issuer
to
,
Trustee
-----------------
INDENTURE
-----------------
Dated as of , 199
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.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Recitals.................................................................................. 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions............................................................. 2
Section 102. Compliance Certificates and Opinions.................................... 11
Section 103. Form of Documents Delivered to Trustee.................................. 11
Section 104. Acts of Holders......................................................... 12
Section 105. Notices, etc............................................................ 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..................................................... 15
Section 112. Benefits of Indenture................................................... 16
Section 113. Governing Law........................................................... 16
Section 114. Legal Holidays.......................................................... 16
Section 115. Counterparts............................................................ 16
Section 116. Judgment Currency....................................................... 16
Section 117. Immunity of Stockholders, Directors, Officers and Agents of the
Company................................................................. 17
ARTICLE TWO
Securities Forms
Section 201. Forms Generally......................................................... 18
Section 202. Form of Trustee's Certificate of Authentication......................... 18
Section 203. Securities in Global Form............................................... 18
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.................................... 20
Section 302. Currency; Denominations................................................. 24
Section 303. Execution, Authentication, Delivery and Dating.......................... 24
Section 304. Temporary Securities.................................................... 25
Section 305. Registration, Transfer and Exchange..................................... 26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........................ 29
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved....................... 31
Section 308. Persons Deemed Owners................................................... 32
Section 309. Cancellation............................................................ 33
Section 310. Computation of Interest................................................. 33
ARTICLE FOUR
Satisfaction and Discharge of Indenture
Section 401. Satisfaction and Discharge.............................................. 34
Section 402. Defeasance and Covenant Defeasance...................................... 35
Section 403. Application of Trust Money.............................................. 39
Section 404. Effect on Subordination Provisions...................................... 40
ARTICLE FIVE
Remedies
Section 501. Events of Default....................................................... 41
Section 502. Acceleration of Maturity; Rescission and Annulment...................... 42
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee......... 43
Section 504. Trustee May File Proofs of Claim........................................ 44
Section 505. Trustee May Enforce Claims without Possession of Securities or Coupons.. 45
Section 506. Application of Money Collected.......................................... 45
Section 507. Limitations on Suits.................................................... 45
Section 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts................................ 46
Section 509. Restoration of Rights and Remedies...................................... 46
Section 510. Rights and Remedies Cumulative.......................................... 46
Section 511. Delay or Omission Not Waiver............................................ 47
Section 512. Control by Holders of Securities........................................ 47
Section 513. Waiver of Past Defaults................................................. 47
Section 514. Waiver of Stay or Extension Laws........................................ 48
Section 515. Undertaking for Costs................................................... 48
ARTICLE SIX
The Trustee
Section 601. Certain Rights of Trustee............................................... 49
Section 602. Notice of Defaults...................................................... 50
Section 603. Not Responsible for Recitals or Issuance of Securities.................. 50
Section 604. May Hold Securities..................................................... 50
Section 605. Money Held in Trust..................................................... 51
Section 606. Compensation and Reimbursement.......................................... 51
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
Section 607. Corporate Trustee Required; Eligibility................................. 51
Section 608. Resignation and Removal; Appointment of Successor....................... 52
Section 609. Acceptance of Appointment by Successor.................................. 53
Section 610. Merger, Conversion, Consolidation or Succession to Business............. 54
Section 611. Appointment of Authenticating Agent..................................... 55
ARTICLE SEVEN
Holders Lists and Reports by Trustee and Company
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...................................................... 57
Section 704. Reports by Company...................................................... 58
ARTICLE EIGHT
Consolidation, Merger and Sales
Section 801. Company May Consolidate, Etc............................................ 59
Section 802. Successor Person Substituted for Company................................ 59
ARTICLE NINE
Supplemental Indentures
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
Section 1001. Payment of Principal, Premium, Interest and Additional Amounts.......... 64
Section 1002. Maintenance of Office or Agency......................................... 64
Section 1003. Money for Securities Payments to Be Held in Trust....................... 66
Section 1004. Additional Amounts...................................................... 67
Section 1005. Corporate Existence..................................................... 68
Section 1006. Company Statement as to Compliance...................................... 68
Section 1007. Waiver of Certain Covenants............................................. 68
</TABLE>
iii
<PAGE>
ARTICLE ELEVEN
Redemption of Securities
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1101. Applicability of Article................................................ 69
Section 1102. Election to Redeem; Notice to Trustee................................... 69
Section 1103. Selection by Trustee of Securities to be Redeemed....................... 69
Section 1104. Notice of Redemption.................................................... 70
Section 1105. Deposit of Redemption Price............................................. 71
Section 1106. Securities Payable on Redemption Date................................... 71
Section 1107. Securities Redeemed in Part............................................. 72
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article................................................ 73
Section 1202. Satisfaction of Sinking Fund Payments with Securities................... 73
Section 1203. Redemption of Securities for Sinking Fund............................... 74
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article................................................ 75
ARTICLE FOURTEEN
Securities in Foreign Currencies
Section 1401. Applicability of Article................................................ 76
ARTICLE FIFTEEN
Meetings of Holders of Securities
Section 1501. Purposes for Which Meetings May Be Called............................... 77
Section 1502. Call, Notice and Place of Meetings...................................... 77
Section 1503. Persons Entitled to Vote at Meetings.................................... 77
Section 1504. Quorum; Action.......................................................... 78
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings..... 78
Section 1506. Counting Votes and Recording Action of Meetings......................... 79
</TABLE>
iv
<PAGE>
ARTICLE SIXTEEN
Subordination of Securities
<TABLE>
<CAPTION>
<S> <C> <C>
Section 1601. Agreement to Subordinate................................................ 81
Section 1602. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities............................................... 81
Section 1603. No Payment on Securities in Event of Default on Senior Indebtedness..... 83
Section 1604. Payments on Securities Permitted........................................ 83
Section 1605. Authorization of Holders to Trustee to Effect Subordination............. 83
Section 1606. Notices to Trustee...................................................... 83
Section 1607. Trustee as Holder of Senior Indebtedness................................ 84
Section 1608. Modifications of Terms of Senior Indebtedness........................... 84
Section 1609. Reliance on Judicial Order or Certificate of Liquidating Agent.......... 85
</TABLE>
v
<PAGE>
INDENTURE, dated as of , 199 (the "Indenture"), among BAY VIEW CAPITAL
CORPORATION, a corporation duly organized and existing under the laws of State
of Delaware (hereinafter called the "Company"), having its principal executive
office located at 1840 Gateway Drive, San Mateo, California 94404, and , a
banking association duly organized and existing under the laws of the United
States of America (hereinafter called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its 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:
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the terms
"generally accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act", when used with respect to any Holders, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required hereby
or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes, assessments or other governmental
charges imposed on Holders specified therein and which are owing to such
Holders.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such specified Person and any legal or beneficial owner,
directly or indirectly, of 20% or more of the total voting power of all
outstanding Voting Stock of such specified Person. Notwithstanding the
foregoing, no Securitization Entity shall be deemed an Affiliate of the Company.
The term "Affiliated" has a meaning correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 611 to act on behalf of the Trustee to authenticate Securities of one
or more series.
2
<PAGE>
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, delivered to the Trustee.
"Business Day" means, with respect to the Securities of any series unless
otherwise specified pursuant to Section 301 with respect to such Securities, any
day other than a Saturday, Sunday or other day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or executive
order to close; provided that such term shall mean, with respect to any Place of
Payment for such Securities of any series, unless otherwise specified with
respect to such Securities pursuant to Section 301, any day other than a
Saturday, Sunday or other day on which banking institutions in such Place of
Payment are authorized or obligated by law, regulation or executive order to
close.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights or other equivalents (however designated) in the equity
of such Person (including, without limitation, with respect to a corporation,
common stock, preferred stock and other capital stock, with respect to a
partnership, partnership interests, whether general or limited, and, with
respect to a limited liability company, limited liability company interests) and
any rights (other than debt securities convertible into or exchangeable or
exercisable for equity interests), warrants or options exchangeable or
exercisable for or convertible into an equity interest in such Person.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
3
<PAGE>
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person, and any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a written request
or order, as the case may be, signed in the name of the Company by the Chairman
of the Board of Directors, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through ownership of voting securities (or pledge of voting securities
if the pledgee thereof may on the date of determination exercise or control the
exercise of the voting rights of the owner of such voting securities), by
contract or otherwise; and the terms "Controlling" and "Controlled" have
meanings correlative to the foregoing.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means 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 .
"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.
4
<PAGE>
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European Community.
"European Union" means the European Community, the European Coal and Steel
Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such government.
"GAAP" means such accounting principles as are generally accepted in the
United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the other government or governments in the
confederation which issued the Foreign Currency in which the principal of or any
premium or interest on the relevant Security or any Additional Amounts in
respect thereof shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of such government or
governments or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America or such
other government or governments, in each case where the timely payment or
payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder", in the case of any Registered Security, means the Person in whose
name such Security is registered in the Security Register and, in the case of
any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security 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
5
<PAGE>
independent public accountants regularly retained by the Company or who may be
other independent public accountants. Such accountants or firm shall be entitled
to rely upon any Opinion of Counsel as to the interpretation of any legal
matters relating to this Indenture or certificates required to be provided
hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", with respect to any Original Issue Discount Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holidays" has the meaning specified in Section 114.
"Major Bank Subsidiary" means (i) Bay View Bank, a federal savings bank,
and any successor to all or substantially all of the business of Bay View Bank,
a federal savings bank, in each case so long as it shall be a Subsidiary of the
Company and (ii) any Significant Subsidiary of the Company which is a bank,
trust company, savings bank, savings and loan association, savings association
or other banking or thrift institution.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes a Redemption Date
for such Security.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, that complies
with the requirements of Section 314(e) of the Trust Indenture Act and is
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
6
<PAGE>
"Original Issue Discount Security" means a Security issued pursuant to this
Indenture which provides for declaration of an amount less than the principal
face amount thereof to be due and payable upon acceleration pursuant to Section
502.
"Outstanding", when used with respect to any Securities, means, as of the
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant
hereto (other than pursuant to Section 402) with the Trustee or
any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and
any Coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except
to the extent provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof satisfactory
to it that such Security is held by a bona fide purchaser in
whose hands such Security is a valid obligation of the Company;
and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities, if the terms of
such Security provide for such conversion or exchange pursuant to
Section 301;
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
7
<PAGE>
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
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.
8
<PAGE>
"Regular Record Date" for the interest payable on any Registered Security
on any Interest Payment Date therefor means the date, if any, specified in or
pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer or employee of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securitization Entity" means any pooling arrangement or entity (except for
any entity in corporate or partnership form) formed or originated for the
purpose of holding, and issuing securities representing interests in, one or
more pools of mortgages, leases, credit card receivables, home equity loan
receivables, automobile loans, leases or installment sales contracts, other
consumer receivables or other financial assets of the Company or any of its
Subsidiaries, and shall include, without limitation, any grantor trust, owner's
trust or real estate mortgage investment conduit.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means (a) any liability of the Company (1) for
borrowed money or under any reimbursement obligation relating to a letter of
credit, surety bond or similar instrument, or (2) evidenced by a bond, note,
debenture or similar instrument, or (3) for obligations to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, or (4) for the payment of money relating to a
capitalized lease obligation, or (5) for the payment of money under any Swap
Agreement; (b) any liability of others described in the preceding clause (a)
that the Company has guaranteed or that is otherwise its legal liability; and
(c) any deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above, unless, in the instrument creating or
evidencing any such liability referred to in clause (a) or (b) above or any such
deferral, renewal, extension or refunding referred to in clause (c) above or
pursuant to which the same is outstanding, it is expressly provided that such
liability, deferral, renewal, extension or refunding is not senior or prior in
right of payment to the Securities or ranks pari passu with or subordinate to
the Securities in right of payment; and provided that the Securities shall not
constitute Senior Indebtedness.
"Significant Subsidiary" means, with respect to any Person, any Subsidiary
of such Person which is a "significant subsidiary" as defined in Rule 1-02 (w)
of Regulation S-X
9
<PAGE>
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 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.
10
<PAGE>
"United States Person" means, unless otherwise specified with respect to
any Debt Securities pursuant to Section 301, any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States, any estate the income of which is
subject to United States federal income taxation regardless of its source, or
any trust whose administration is subject to the primary supervision of a United
States court and which has one or more United States fiduciaries who have the
authority to control all substantial decisions of the trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, unless otherwise provided with respect to any Security,
any successor to such Person. If at any time there is more than one such
Person, "U.S. Depository" or "Depository" shall mean, with respect to any
Securities, the qualifying entity which has been appointed with respect to such
Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means, with respect to any Person, any class or classes or
series or series of Capital Stock of such Person pursuant to which the holders
thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not, at the time, Capital Stock of any other class
or classes or series or series shall have, or might have, voting power by reason
of the happening of any contingency).
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this Indenture,
upon any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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
11
<PAGE>
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by or pursuant to this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
made, given or taken by Holders of Securities of such series may, alternatively,
be embodied in and evidenced by the record of Holders of Securities of such
series voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
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
12
<PAGE>
interests in any such global Security through such U.S. Depository's standing
instructions and customary practices.
(2) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer Securities
held by any Person, and the date of the commencement and the date of the
termination of holding the same, may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by any trust company,
bank, banker or other depositary reasonably acceptable to the Company, wherever
situated, if such certificate shall be deemed by the Company and the Trustee to
be satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Company and the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or 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
13
<PAGE>
Holder of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee, any Security Registrar, any Paying Agent or the Company
in reliance thereon, whether or not notation of such Act is made upon such
Security.
Section 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to the attention of its Treasurer, at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not earlier
than the earliest date and the second such publication not later than the
latest date prescribed for the giving of such notice.
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
14
<PAGE>
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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.
15
<PAGE>
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent and their successors hereunder, the holders of Senior
Indebtedness and the Holders of Securities or Coupons, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
State.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that specifically states
that such provision shall apply in lieu hereof) payment need not be made at such
Place of Payment on such date but such payment may be made on the next
succeeding day that is a Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or at the Stated
Maturity or Maturity, and no interest shall accrue on the amount payable on such
date or at such time for the period from and after such Interest Payment Date,
Stated Maturity or Maturity, as the case may be, to the next succeeding Business
Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding 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
16
<PAGE>
the Required Currency so expressed to be payable and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For
purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or obligated by law,
regulation or executive order to be closed. The provisions of this Section 116
shall not be applicable with respect to any payment due on a Security which is
payable in Dollars.
Section 117. Immunity of Stockholders, Directors, Officers and Agents of
the Company.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any past, present or future stockholder, employee,
officer or director, as such, of the Company or of any predecessor or successor,
either directly or through the Company or any predecessor or successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issue of the
Securities.
17
<PAGE>
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
18
<PAGE>
and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the amount,
or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby shall be made in such manner and
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered pursuant to Section 303 or 304 with respect thereto. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise specified
in or pursuant to this Indenture or any Securities, payment of principal of, any
premium and interest on, and any Additional Amounts in respect of any Security
in temporary or permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 301.
19
<PAGE>
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 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);
20
<PAGE>
(6) if any of such Securities are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer Security
in global form payable in respect of an Interest Payment Date therefor
prior to the exchange, if any, of such temporary Bearer Security for
definitive Securities shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear interest, if
any, or the method or methods, if any, by which such rate or rates are to
be determined, the date or dates, if any, from which such interest shall
accrue or the method or methods, if any, by which such date or dates are to
be determined, the Interest Payment Dates, if any, on which such interest
shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date, whether and
under what circumstances Additional Amounts on such Securities or any of
them shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The City
of New York, the place or places where the principal of, any premium and
interest on or any Additional Amounts with respect to such Securities shall
be payable, any of such Securities that are Registered Securities may be
surrendered for registration of transfer or exchange, any of such
Securities may be surrendered for conversion or exchange and notices or
demands to or upon the Company in respect of such Securities and this
Indenture may be served;
(10) whether any of such Securities are to be redeemable at the option
of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part,
at the option of the Company;
(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;
21
<PAGE>
(13) whether the Securities of the series will be convertible into
shares of Common Stock and/or exchangeable for other securities, and if so,
the terms and conditions upon which such Securities will be so convertible
or exchangeable, and any deletions from or modifications or additions to
this Indenture to permit or to facilitate the issuance of such convertible
or exchangeable Securities or the administration thereof;
(14) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment of
the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities are to be payable, at the
election of the Company or a Holder thereof or otherwise, in Dollars or in
a Foreign Currency other than that in which such Securities are stated to
be payable, the date or dates on which, the period or periods within which,
and the other terms and conditions upon which, such election may be made,
and the time and manner of determining the exchange rate between the
Currency in which such Securities are stated to be payable and the Currency
in which such Securities or any of them are to be paid pursuant to such
election, and any deletions from or modifications of or additions to the
terms of this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may
be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(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;
22
<PAGE>
(20) if any of such Securities are to be issuable upon the exercise of
warrants, and the time, manner and place for such Securities to be
authenticated and delivered;
(21) if any of such Securities are to be issuable in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the form and
terms of such certificates, documents or conditions;
(22) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying
Agent or Authenticating Agent with respect to such Securities;
(23) the Person to whom any interest on any Registered Security of
such series shall be payable, if other than the Person in whose name the
Registered Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer Security
of such series shall be payable, if other than upon presentation and
surrender of the Coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest payable on a
temporary global Security will be paid if other than in the manner provided
in this Indenture; and
(24) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining to
Bearer Securities of such series shall be substantially identical except as to
Currency of payments due thereunder, denomination and the rate of interest, or
method of determining the rate of interest, if any, Maturity, and the date from
which interest, if any, shall accrue and except as may otherwise be provided by
the Company in or pursuant to the Board Resolution and set forth in the
Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental 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.
23
<PAGE>
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities shall be payable in Dollars. Unless otherwise provided in or
pursuant to this Indenture, Registered Securities denominated in Dollars shall
be issuable in registered form without Coupons in denominations of $1,000 and
any integral multiple thereof, and the Bearer Securities denominated in Dollars
shall be issuable in the denomination of $5,000. Securities not denominated in
Dollars shall be issuable in such denominations as are established with respect
to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman of
the Board of Directors, its President or one of its Vice Presidents under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. Coupons shall be executed on behalf of the Company by
the Chairman of the Board of Directors, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company. The signature of any of
these officers on the Securities or any Coupons appertaining thereto may be
manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under 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
24
<PAGE>
Indenture, and authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer or other similar laws relating to or affecting
creditors' rights generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law).
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel at the time of issuance
of each Security, but such opinion, with such modifications as counsel shall
deem appropriate, shall be delivered at or before the time of issuance of the
first Security of such series. After any such first delivery, any separate
request by the Company that the Trustee authenticate Securities of such series
for original issue will be deemed to be a certification by the Company that all
conditions precedent provided for in this Indenture relating to authentication
and delivery of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for in Section 202 or 611 executed by or on behalf of the Trustee
or by the Authenticating Agent by the manual signature of one of its authorized
officers. Such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306 or 307 or as may otherwise be
provided in or pursuant to this Indenture, the Trustee shall not authenticate
and deliver any Bearer Security unless all Coupons appertaining thereto then
matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute
and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
25
<PAGE>
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities are
issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for 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.
26
<PAGE>
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities of
any series, at the option of the Holder, Bearer Securities of such series may be
exchanged for Registered Securities of such series containing identical terms,
denominated as authorized in or pursuant to this Indenture and in the same
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered 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
27
<PAGE>
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 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
28
<PAGE>
Special Record Date for such Security and before the opening of business at such
Office or Agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but shall be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global Security shall
be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities or repayment of Securities at the Holder's
option, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 905 or 1107, upon repayment in part of any Registered
Security pursuant to Article Thirteen, or upon surrender in part of any
Registered Security for conversion or exchange into Common Stock or other
securities pursuant to its terms, in each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities 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
29
<PAGE>
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with Coupons
appertaining thereto corresponding to the Coupons, if any, appertaining to the
surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case any
mutilated, destroyed, lost or stolen Security or Coupon has become or is about
to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or Coupon; provided, however, that payment of
principal of, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed 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.
30
<PAGE>
Section 307. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name such Security (or one or
more Predecessor Securities) is registered as of the close of business on the
Regular Record Date for such interest. Unless otherwise provided in or pursuant
to this Indenture, in case a Bearer Security is surrendered in exchange for a
Registered Security after the close of business at an Office or Agency for such
Security on any Regular Record Date therefor and before the opening of business
at such Office or Agency on the next succeeding Interest Payment Date therefor,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date and interest shall not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on 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,
31
<PAGE>
The City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered Security
after the close of business at such Office or Agency on any Special Record
Date and before the opening of business at such Office or Agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Defaulted
Interest and Defaulted Interest shall not be payable on such proposed date
of payment in respect of the Registered Security issued in exchange for
such Bearer Security, but shall be payable only to the Holder of such
Coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States.
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
32
<PAGE>
purposes whatsoever, whether or not any payment with respect to such Security or
Coupon shall be overdue, and neither the Company, the Trustee or any agent of
the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
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.
33
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture shall
cease to be of further effect with respect to any series of Securities specified
in such Company Order and any Coupons appertaining thereto, and the Trustee, on
receipt of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange
for Registered Securities of such series and maturing after such exchange
whose surrender is not required or has been waived as provided in Section
305, (ii) Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
306, (iii) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date whose surrender
has been waived as provided in Section 1106, and (iv) Securities and
Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or (ii)
below, if applicable, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the 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
34
<PAGE>
and any Coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation, including the principal of, any premium and
interest on, and any Additional Amounts with respect to, such Securities
and any Coupons appertaining thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Maturity
thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 606 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 305, 306, 403, 404, 1002 and 1003, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 1004, and with respect to any rights to convert or exchange such
Securities into Common Stock or other securities, shall survive.
Section 402. Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i) defeasance of
the Securities of or within a series under clause (2) of this Section 402 or
(ii) covenant defeasance of the Securities of or within a series under clause
(3) of this Section 402 shall not be applicable with respect to the Securities
of such series, then such provisions, together with the other provisions of this
Section 402 (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any Coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Securities and any
Coupons appertaining thereto, elect to have Section 402(2) or 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
35
<PAGE>
deemed to be "Outstanding" only for the purposes of clause (5) of this Section
402 and the other Sections of this Indenture referred to in clauses (i) and (ii)
of this paragraph, and to have satisfied all of its other obligations under such
Securities and any Coupons appertaining thereto and this Indenture insofar as
such Securities and any Coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company , shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities and any Coupons appertaining thereto to receive, solely
from the trust fund described in clause (4) of this Section 402 and as more
fully set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest, if any, on, and Additional Amounts, if any, with
respect to, such Securities and any Coupons appertaining thereto when such
payments are due, and any rights of such Holder to convert or exchange such
Securities into Common Stock or other securities, (ii) the obligations of the
Company and the Trustee with respect to such Securities under Sections 305, 306,
1002 and 1003, with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1004, and with respect to any rights
to convert or exchange such Securities into Common Stock or other securities,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Section 402 and Sections 403 and 404. The Company may exercise its
option under this Section 402(2) notwithstanding the prior exercise of its
option under Section 402(3) with respect to such Securities and any Coupons
appertaining thereto.
(3) Upon the Company's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
shall be released from its obligations under Section 1005 (other than the
Company's obligation to preserve and keep in full force and effect its corporate
existence pursuant to Section 1005) and, to the extent specified pursuant to
Section 301, any other covenant applicable to such Securities, with respect to
such Outstanding Securities and any Coupons appertaining thereto on and after
the date the conditions set forth in clause (4) of this Section 402 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
Coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with any such
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any Coupons appertaining thereto, the Company
may omit to comply with, and shall have no liability in respect of, any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such 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:
36
<PAGE>
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Section 402 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining thereto are
then specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto (determined
on the basis of the Currency in which such Securities and Coupons
appertaining thereto are then specified as payable at Stated Maturity or,
if such defeasance or covenant defeasance is to be effected in compliance
with subsection (f) below, on the relevant Redemption Date, as the case may
be) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and premium, if
any) and interest, if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on, such
Outstanding Securities and any Coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest or the
applicable Redemption Date, as the case may be, and (z) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities and any Coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any
Major Bank Subsidiary is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and
any Coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit, 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
37
<PAGE>
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.
(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
38
<PAGE>
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4) of this Section 402 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations deposited with the Trustee pursuant to Section 401 or
402 shall be held in trust and applied by it, in accordance with the provisions
of the Securities, the Coupons and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled 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.
39
<PAGE>
Section 404. Effect on Subordination Provisions.
Unless otherwise expressly provided pursuant to Section 301 with respect to
the Securities of any series, the provisions for subordination of the Securities
set forth in Article Sixteen hereof are hereby expressly made subject to the
provisions for satisfaction and discharge set forth in Section 401 hereof and
the provisions for defeasance and covenant defeasance set forth in Section 402
hereof and, anything herein to the contrary notwithstanding, upon the
effectiveness of such satisfaction and discharge pursuant to Section 401 or any
such defeasance or covenant defeasance pursuant to Section 402 with respect to
the Securities of any series, such Securities shall thereupon cease to be so
subordinated and shall no longer be subject to the provisions of Article Sixteen
hereof and, without limitation to the foregoing, all moneys, Government
Obligations and other securities or property deposited with the Trustee (or
other qualifying trustee) in trust in connection with such satisfaction and
discharge, defeasance or covenant defeasance, as the case may be, and all
proceeds therefrom may be applied to pay the principal of, premium, if any, and
interest, if any, on, and Additional Amounts, if any, with respect to the
Securities of such series as and when the same shall become due and payable
notwithstanding the provisions of Article Sixteen.
40
<PAGE>
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest on, or any Additional Amounts
payable in respect of any interest on, any Security of such series or any Coupon
appertaining thereto when such interest or such Additional Amounts, as the case
may be, become due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of any principal of or premium, if any, on, or
any Additional Amounts payable in respect of any principal of or premium, if
any, on, any Security of such series when due upon Maturity; or
(3) default in the deposit of any sinking fund payment when due with
respect to any Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture or any Security of such series (other than a
covenant or warranty for which the consequences of breach or nonperformance are
addressed elsewhere in this Section 501 or a covenant or warranty which has
expressly been included in this Indenture or a Security of that series, whether
or not by means of a supplemental indenture, solely for the benefit of
Securities of a series other than such series), and continuance of such default
or breach for a period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of such series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry by a court or, in the case of any Major Bank Subsidiary, any
court or governmental or other supervisory authority having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company or any
Major Bank Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company or any Major Bank Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company or any Major Bank Subsidiary under any applicable Federal or State law,
or appointing a custodian,
41
<PAGE>
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 occurs and is
continuing, then either the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of any series may declare the
principal of all the Securities of such series, or such lesser amount as may be
provided for in the Securities of such series, and accrued and unpaid interest,
if any, thereon to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or such lesser amount, as the case may be, and such
accrued and unpaid interest shall become immediately due and payable.
At any time after Securities of any series have been accelerated and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
42
<PAGE>
(a) all overdue installments of any interest on any Securities of such
series and any Coupons appertaining thereto which have become due otherwise
then by such declaration of acceleration and any Additional Amounts with
respect thereto,
(b) the principal of and any premium on any Securities of such series
which have become due otherwise than by such declaration of acceleration
and any Additional Amounts with respect thereto and, to the extent
permitted by applicable law, interest thereon at the rate or rates borne by
or provided for in such Securities,
(c) to the extent permitted by applicable law, interest upon
installments of any interest, if any, which have become due otherwise then
by such declaration of acceleration and any Additional Amounts with respect
thereto at the rate or rates borne by or provided for in such Securities,
and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee under
Section 606; and
(2) all Events of Default under Sections 501(5) and 501(6) with respect to
Securities of such series shall have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on, or any Additional
Amounts payable in respect of any interest on, any Security or any Coupon
appertaining thereto when such interest or Additional Amounts, as the case may
be, shall have become due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of any principal of or premium, if any,
on, or any Additional Amounts payable in respect of any principal of or premium,
if any, on, any Security at its Maturity, or
(3) default is made in the deposit of any sinking fund payment when due,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent permitted by applicable law, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
of money as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due to the Trustee
under Section 606.
43
<PAGE>
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and any Coupons appertaining thereto and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the 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.
44
<PAGE>
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.
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;
45
<PAGE>
(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.
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
46
<PAGE>
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
(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.
47
<PAGE>
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company expressly waives (to the extent
that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 515. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, 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.
48
<PAGE>
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (in each
case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence shall be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; and
49
<PAGE>
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts or any sinking fund installment
with respect to, any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
best interest of the Holders of Securities and Coupons of such series; and
provided, further, that in the case of any default of the character specified in
Section 501(4) or 501(7) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
50
<PAGE>
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 as such,
except funds held in trust for the payment of principal of, or premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501(5) or 501(6) is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law.
"Trustee" for purposes of this Section 606 shall include any predecessor Trustee
but the negligence or bad faith of any Trustee shall not affect the rights of
any other Trustee under this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
(1) There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and
51
<PAGE>
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 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
52
<PAGE>
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 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
53
<PAGE>
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 confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
54
<PAGE>
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 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.
55
<PAGE>
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 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.
56
<PAGE>
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 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.
57
<PAGE>
(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.
58
<PAGE>
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.
59
<PAGE>
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
60
<PAGE>
(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, 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
61
<PAGE>
(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 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.
62
<PAGE>
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.
63
<PAGE>
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and Additional
Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served; provided that, if (i) the
Borough of Manhattan, The City of New York is a Place of Payment for the
Securities of any series, (ii) there shall be another Place of Payment for such
Securities in addition to the Borough of Manhattan, The City of New York, and
(iii) all Securities of such series are originally issued solely in the form of
one or more permanent global Securities, then the Company shall not be required
to maintain any such office or agency in the Borough of Manhattan, The City of
New York unless and until all or any portion of such global Securities shall be
exchanged for definitive certificated Securities of such series as contemplated
by the last paragraph of this Section 1002. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
the London Stock Exchange or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company shall maintain a Paying Agent in London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such Office or Agency. If at any time the Company shall
fail to maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified for
the purpose with respect to such Securities as provided in or pursuant to this
64
<PAGE>
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 maintain an Office or Agency
in each Place of Payment for Securities of any series for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other Office or
Agency. Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates as the Place of Payment for each series of Securities the
Borough of Manhattan, The City of New York, and the place (initially ) 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.
65
<PAGE>
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on, or any Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal or any premium, interest or Additional Amounts so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it shall, on or prior to each due date of the principal of, or any
premium or interest on, or any Additional Amounts with respect to any Securities
of such series, deposit with any Paying Agent a sum (in the Currency or
Currencies described in the preceding paragraph) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due, such sum to be
held in trust for the benefit of the Persons entitled thereto, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any payment of
principal, any premium or interest on or any Additional Amounts with respect to
the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any Security 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
66
<PAGE>
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security or
any Coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may, not later than 30 days after the Company's request for such
repayment, at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment for such series or to be mailed to
Holders of Registered Securities of such series, or both, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing nor shall it be
later than two years after such principal and any premium or interest or
Additional Amounts shall have become due and payable, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company shall
furnish to the Trustee and the principal Paying Agent or Paying Agents, if other
than the Trustee, an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and premium,
if any, or interest, if any, on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent 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
67
<PAGE>
of or in connection with actions taken or omitted by any of them in reliance on
any Officers' Certificate furnished pursuant to this Section.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory), licenses and franchises; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise if the Board of Directors of the Company determines that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries taken as a whole and that the loss thereof
is not disadvantageous in any material respect to the Holders.
Section 1006. Company Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating whether or not, to the best of his or her knowledge, the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
he or she may have knowledge.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1005 with respect to the Securities
of any series and, if expressly provided pursuant to Section 301(18), any
additional covenants applicable to the Securities of such series if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series, by Act of such Holders, either
shall waive such compliance in such instance or generally shall have waived
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
68
<PAGE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed and, in the event that the Company shall determine that the Securities
of any series to be redeemed shall be selected from Securities of such series
having the same issue date, interest rate or interest rate formula, Stated
Maturity and other terms (the "Equivalent Terms"), the Company shall notify the
Trustee of such Equivalent Terms.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed or if
less than all of the Securities of any series with Equivalent Terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series or from the Outstanding Securities of such series with
Equivalent Terms, as the case may be, not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions of the principal amount of
Registered Securities of such series; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock or other securities in part before
termination of the conversion or exchange right with respect to the
69
<PAGE>
portion of the Security so selected, the converted or exchanged portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted or exchanged during a selection
of Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder of such Security will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due and
payable upon each such Security or portion thereof to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities, together (in the case of
Bearer Securities) with all Coupons appertaining thereto, if any, maturing after
the Redemption Date, are to be surrendered for payment of the Redemption Price
and any accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(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
70
<PAGE>
deducted from the Redemption Price, unless security or indemnity satisfactory to
the Company, the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible or
exchangeable into Common Stock or other securities, the conversion or exchange
price or rate, the date or dates on which the right to convert or exchange the
principal of the Securities of such series to be redeemed will commence or
terminate, as applicable, and the place or places where such Securities may be
surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers of
such Securities, if any (or any other numbers used by a Depository to identify
such Securities).
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with respect
to the Securities of any series called for redemption pursuant to Section 1104,
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the applicable Currency sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date, unless
otherwise specified pursuant to Section 301 for or in the Securities of such
series) any accrued interest on and Additional Amounts with respect thereto, all
such Securities or portions thereof which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the 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
71
<PAGE>
Date; provided, however, that, except as otherwise provided in or pursuant to
this Indenture or the Bearer Securities of such series, installments of interest
on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of Coupons for such
interest (at an Office or Agency located outside the United States except as
otherwise provided in Section 1002), and provided, further, that, except as
otherwise specified in or pursuant to this Indenture or the Registered
Securities of such series, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates therefor
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price, or, at the option of the
Company, after payment to the Trustee for the benefit of the Company of, an
amount equal to the face amount of all such missing Coupons, or the surrender of
such missing Coupon or Coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that any interest or Additional Amounts represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an Office or Agency for such Security located outside of the United
States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or, if no rate is prescribed therefor in the Security, at the rate of
interest, if any, borne by such Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the 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.
72
<PAGE>
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities, (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly. If as a result of the delivery or credit of Securities
of any series in lieu of cash payments pursuant to this Section 1202, the
principal amount of Securities of such series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such series for redemption, except upon Company Request, and
such cash payment shall be held by the Trustee or a Paying Agent and applied to
the next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall at the request of the Company from time to time pay over
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.
73
<PAGE>
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.
74
<PAGE>
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount of
Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Section
1301, in connection with any repayment of Securities, the Company may arrange
for the purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
75
<PAGE>
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.
76
<PAGE>
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution)
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of or made
the first publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 106) or shall
not thereafter proceed to cause the meeting to be held as provided herein, then
the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (1) of
this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
77
<PAGE>
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(1), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of at least 66-2/3% in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
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
78
<PAGE>
such series in regard to proof of the holding of Securities of such series and
of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or by having the
signature of the person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. If
the Securities of such series are issuable in minimum denominations of less than
$1,000, then a Holder of such a Security in a principal amount of less than
$1,000 shall be entitled to a fraction of one vote which is equal to the
fraction that the principal amount of such Security bears to $1,000. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at 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
79
<PAGE>
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
80
<PAGE>
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
Section 1601. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and agrees,
and each Holder of Securities by his acceptance thereof, likewise covenants and
agrees, that the payment of the principal of, premium, if any, and interest, if
any, on, and Additional Amounts, if any, in respect of each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 1602. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Securities and the holders thereof by a lawful plan of
reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be entitled to
receive payment in full of the principal thereof (and premium, if any) and
interest due thereon (or to have such payment duly provided for) before the
Holders of the Securities are entitled to receive any payment upon the
principal (or premium, if any) or interest, if any, on, or Additional
Amounts, if any, in respect of the indebtedness evidenced by the
Securities; and
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders
of the Securities or the Trustee would be entitled except for the
provisions of this Article Sixteen shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of (and premium, if any) and interest on the
Senior Indebtedness held or represented by each to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; and
81
<PAGE>
(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.
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.
82
<PAGE>
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.
Section 1606. Notices to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities pursuant to this Article Sixteen. Failure
to give such notice shall not affect the subordination of the Securities to
Senior Indebtedness. Notwithstanding the provisions of this Article Sixteen or
any other provisions of this Indenture, neither the Trustee nor any Paying Agent
(other than the Company) shall be charged with knowledge of the existence of any
Senior Indebtedness or of any event which would prohibit the making of any
payment of moneys to or by the Trustee or such Paying Agent, unless and until
the Trustee or such Paying Agent shall
83
<PAGE>
have received (in the case of the Trustee, at its Corporate Trust Office)
written notice thereof from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee; provided, however, that if at least two Business Days
prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of either
the principal of (or premium, if any) or interest, if any, on any Security) the
Trustee shall not have received with respect to such moneys the notice provided
for in this Section 1606, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
moneys and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date. The Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such a notice has been given by a holder of Senior Indebtedness
or a trustee on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness (or a trustee on behalf
of such holder) to participate in any payment or distribution pursuant to this
Article Sixteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person (or the amount of Senior Indebtedness as to which such
Person is trustee), the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Sixteen and, if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 1607. Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Sixteen in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior Indebtedness
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.
Nothing in this Article Sixteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
Section 1608. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness
or the exercise by the holders of Senior Indebtedness of any of their rights
under any instrument creating or evidencing Senior Indebtedness, including,
without limitation, the waiver of default thereunder, may be made or done all
without notice to or assent from the Holders of the Securities or the Trustee.
To the extent permitted by applicable law, no compromise, alteration,
amendment, modification, extension, renewal or other change of, or waiver,
consent or other action in respect of, any liability or obligation under or in
respect of any Senior Indebtedness, or any of the terms, covenants or conditions
of any indenture or other instrument under which any Senior
84
<PAGE>
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.
85
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION
By: _____________________________________________
Name: Edward H. Sondker
Title: President and Chief Executive Officer
[SEAL]
Attest:
_____________________________________
Name: Robert J. Flax
Title: Executive Vice President,
General Counsel and Secretary
^,
as Trustee
By: _____________________________________________
Name:
Title:
[SEAL]
Attest:
_____________________________________
Name:
Title:
86
<PAGE>
EXHIBIT 4(f)
FORM OF WARRANT AGREEMENT
_________________________________________________________
BAY VIEW CAPITAL CORPORATION
and
As Warrant Agent
______________________
WARRANT AGREEMENT
Dated as of
______________________
_________________________________________________________
<PAGE>
TABLE OF CONTENTS/1/
<TABLE>
<CAPTION>
Page
----
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION OF WARRANT CERTIFICATES
<S> <C>
Section 1.1 Issuance of Warrant Certificates................................ 1
Section 1.2 Form of Warrant Certificate..................................... 1
Section 1.3 Execution and Authentication of Warrant Certificates............ 2
Section 1.4 Temporary Warrant Certificates.................................. 2
Section 1.5 Payment of Taxes................................................ 3
Section 1.6 Definition of Holder............................................ 3
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price................................................... 3
Section 2.2 Duration of Warrants............................................ 3
Section 2.3 Exercise of Warrants............................................ 4
Section 2.4 Reservation of Shares........................................... 5
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 [Call of Warrants by the Corporation............................ 5
Section 3.2 Adjustment of Exercise Price and Number of Shares Purchasable
or Number of Warrants......................................... 5
ARTICLE IV
REGISTRATION, EXCHANGE, TRANSFER AND SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 Registration, Exchange and Transfer of Warrant Certificates..... 8
Section 4.2 Mutilated, Destroyed, Lost or Stolen Warrant Certificates....... 9
Section 4.3 Persons Deemed Owners........................................... 10
Section 4.4 Cancellation of Warrant Certificates............................ 10
</TABLE>
_______________
/1/ The Table of Contents is not a part of the Warrant Agreement.
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
<S> <C>
Section 5.1 No Rights as Stockholders Conferred by Warrants or Warrant
Certificates.................................................. 10
Section 5.2 Holder of Warrant Certificate May Enforce Rights................ 10
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent................................................... 11
Section 6.2 Conditions of Warrant Agent's Obligations....................... 11
Section 6.3 Resignation, Removal and Appointment of Successor............... 12
ARTICLE VII
MISCELLANEOUS
Section 7.1 Consolidations and Mergers of the Corporation and Sales,
Leases and Conveyances Permitted Subject to Certain
Conditions................................................... 14
Section 7.2 Rights and Duties of Successor Company.......................... 14
Section 7.3 Amendment....................................................... 14
Section 7.4 Notices and Demands to the Company and Warrant Agent............ 14
Section 7.5 Notices to Warrant Holders...................................... 15
Section 7.6 Addresses....................................................... 16
Section 7.7 GOVERNING LAW................................................... 16
Section 7.8 Delivery of Prospectus.......................................... 16
Section 7.9 Obtaining of Governmental Approvals............................. 16
Section 7.10 Persons Having Rights Under Warrant Agreement.................. 16
Section 7.11 Headings....................................................... 16
Section 7.12 Counterparts................................................... 17
Section 7.13 Inspection of Agreement........................................ 17
Exhibit A - Form of Warrant Certificate
</TABLE>
ii
<PAGE>
THIS WARRANT AGREEMENT, dated as of ^, between Bay View Capital
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (the "Company") and ^, a ^ organized and existing under the
laws of ^, as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [IF OTHER SECURITIES AND WARRANTS -
[title of other Securities being offered] (the "Offered Securities") with]
warrant certificates (such warrant certificates and other warrant certificates
issued pursuant to this Agreement herein called the "Warrant Certificates")
evidencing one or more warrants (the "Warrants" or, individually, a "Warrant")
each representing the right to purchase ^ shares of the Company's common stock,
par value $0.01 per share (the "Stock"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and in
this Agreement wishes to set forth, among other things, the form and provisions
of the Warrant Certificates and the terms and conditions on which they may be
issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates. [IF WARRANTS ALONE --Upon
- ------------ --------------------------------
issuance, each Warrant Certificate shall evidence one or more Warrants.] [IF
OFFERED SECURITIES AND WARRANTS -- Warrant Certificates shall be [initially]
issued in units with the Offered Securities and shall [not] be separately
transferable [before ^ (the "Detachable Date").] Each such unit shall consist
of ^ and a Warrant Certificate or Certificates evidencing an aggregate of ^
Warrants.] Each Warrant evidenced thereby shall represent the right, subject to
the provisions contained herein and therein, to purchase [one] share of Stock.
Section 1.2 Form of Warrant Certificate. The Warrant Certificates (including
---------------------------
the form[s] of exercise [and assignment] to be set forth on the reverse thereof)
shall be in substantially the form set forth in Exhibit A hereto, shall be
printed, lithographed, photocopied, typewritten, mimeographed or otherwise
reproduced in any manner determined by the officers of the Company executing
such Warrant Certificates, with the execution thereof by such officers
conclusively evidencing such determination, and the Warrant Certificates may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon 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 securities exchange on which the Warrant Certificates may be listed or as
may, consistently herewith, be determined by the officers of the Company
executing such Warrant Certificates, with the execution thereof by such officers
conclusively evidencing such determination.
<PAGE>
Section 1.3 Execution and Authentication of Warrant Certificates. The Warrant
----------------------------------------------------
Certificates shall be executed on behalf of the Company by its Chairman, its
President, its Chief Executive Officer, any of its Vice Presidents (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President"), or its
Treasurer (each, an "Authorized Officer"), attested to by any Vice President,
its Treasurer, any Assistant Treasurer, its Secretary or any Assistant
Secretary. The signature of any of these officers on the Warrant Certificates
may be manual or facsimile and may be imprinted or otherwise reproduced on the
Warrant Certificates.
Warrant Certificates evidencing the right to purchase a number of the
shares of Stock having an aggregate value (based on the then current market
price per share of Stock determined as set forth in Section 3.2(f) hereof), not
exceeding $^ (except as provided in Sections 1.4, 2.3(c), 4.1 and 4.2) may be
executed by the Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company (as
provided in this Section 1.3), authenticate Warrant Certificates evidencing
Warrants representing the right to purchase a number of shares of Stock and
shall deliver such Warrant Certificates to or upon the written order of the
Company signed by an Authorized Officer. Subsequent to such original issuance
of the Warrant Certificates, the Warrant Agent shall authenticate a Warrant
Certificate only if the Warrant Certificate is issued in exchange or in
substitution for one or more previously authenticated Warrant Certificates or in
connection with their transfer, as hereinafter provided.
Each Warrant Certificate shall be dated the date of its authentication by
the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed on behalf of the
Company (as provided in this Section 1.3) shall be conclusive evidence, and the
only evidence, that the Warrant Certificate so authenticated has been duly
issued hereunder.
Warrant Certificates bearing the manual or facsimile signatures of any
individual who was at the time a proper officer of the Company shall bind the
Company, notwithstanding that such individual has ceased to hold such office
prior to the authentication and delivery of such Warrant Certificates or did not
hold such office at the date of such Warrant Certificates.
Section 1.4 Temporary Warrant Certificates. Pending the preparation of
------------------------------
definitive Warrant Certificates, the Company may execute, and upon the written
order of the Company signed by an Authorized Officer, the Warrant Agent shall
authenticate and deliver, temporary Warrant Certificates which are printed,
lithographed, photocopied, typewritten, mimeographed or otherwise produced
substantially of the tenor of the definitive Warrant Certificates in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Authorized Officer executing such
Warrant Certificates may determine, with the execution thereof by such
Authorized Officer conclusively evidencing such determination.
2
<PAGE>
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or at ^], without charge to the Holder (as defined in Section
1.6 hereof) so long as the definitive Warrant Certificates are registered in the
same names as the temporary Warrant Certificates so surrendered. Upon surrender
for cancellation of any one or more temporary Warrant Certificates, the Company
shall execute (as provided in Section 1.3 hereof) and the Warrant Agent shall
authenticate (as provided in Section 1.3 hereof) and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
Section 1.5 Payment of Taxes. The Company will pay all stamp taxes and other
----------------
duties, if any, to which, under the laws of the United States of America, this
Agreement or the original issuance of the Warrant Certificates may be subject.
Section 1.6 Definition of Holder. The term "Holder" as used herein shall mean
--------------------
[IF OFFERED SECURITIES AND WARRANTS ARE NOT IMMEDIATELY DETACHABLE -- prior to
the Detachable Date, the registered owner of the Offered Security to which such
Warrant Certificate was initially attached, and, after such Detachable Date,]
the person in whose name at the time such Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that purpose
pursuant to Section 4.1 hereof. [IF OFFERED SECURITIES AND WARRANTS ARE NOT
IMMEDIATELY DETACHABLE -- Prior to the Detachable Date, the Company will, or
will cause the registrar of the Offered Securities to, make available to the
Warrant Agent such information as is necessary to keep the Warrant Agent's
records up to date with respect to the Holders of the Offered Securities.]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price. During the period set forth in Section 2.2, each
-------------
Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company [one] share of Stock at the exercise
price of $^ (the "Exercise Price").
Section 2.2 Duration of Warrants. Any Warrant evidenced by a Warrant
--------------------
Certificate may be exercised in whole at any time, as specified herein, on or
after [the date thereof] [^,^] and at or before 5:00 p.m. New York City time on
^,^ (the "Expiration Date"). Each Warrant not exercised at or before 5:00 p.m.
New York City time on the Expiration Date shall become void, and all rights of
the Holder of the Warrant Certificate evidencing such Warrant, under this
Agreement or otherwise, shall cease.
Section 2.3 Exercise of Warrants. (a) During the period specified in Section
--------------------
2.2 hereof, any whole number of Warrants may be exercised by surrendering the
Warrant Certificate evidencing such Warrants at the place or at the places set
forth in the Warrant Certificate, with the form of exercise set forth in the
Warrant Certificate duly executed, accompanied by payment
3
<PAGE>
in full, in lawful money of the United States of America, [in cash or by
certified check or official bank check in immediately available funds] [by wire
transfer in immediately available funds,] of the Exercise Price for each Warrant
exercised to the Warrant Agent at its corporate trust office [or at ^]. The
later of the date on which payment in full of the Exercise Price for a Warrant
and the duly executed and completed Warrant Certificate are received by the
Warrant Agent shall be deemed to be the date on which such Warrant is exercised.
The Warrant Agent shall deposit all funds received by it as payment for the
exercise of Warrants to the account of the Company maintained with it for such
purpose (or shall transfer such funds in accordance with the instructions of any
Authorized Officer of the Company) and shall advise the Company by telephone at
the end of each day on which such a payment is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm such
telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as promptly as practicable
after the exercise of any Warrants in accordance with the terms and conditions
of this Agreement and the Warrant Certificates, advise the Company of (i) the
number of Warrants so exercised in accordance with the terms and conditions of
this Agreement and the Warrant Certificates, (ii) the instructions of each
Holder of the Warrant Certificates evidencing such Warrants with respect to
delivery of the certificate or certificates representing shares of Stock to
which such Holder is entitled upon such exercise, and instructions of such
Holder as to delivery of Warrant Certificates evidencing the balance, if any, of
the Warrants remaining after such exercise, and (iii) such other information as
the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrants, the Company
shall issue to or upon the order of the Holder of the Warrant Certificate
evidencing such Warrants, a certificate or certificates representing the number
of shares of Stock to which such Holder is entitled in such name or names as may
be directed by such Holder; and, if fewer than all of the Warrants evidenced by
such Warrant Certificate were exercised, the Company shall execute (as provided
in Section 1.3 hereof) and an authorized officer of the Warrant Agent shall
manually authenticate (as provided in Section 1.3 hereof) and deliver a new
Warrant Certificate evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Stock; and in the event that any such transfer
is involved, the Company shall not be required to issue or deliver any shares of
Stock until such tax or other charge shall have been paid or it has been
established to the Company's reasonable satisfaction that no such tax or other
charge is due.
4
<PAGE>
Section 2.4 Reservation of Shares. For the purpose of enabling it to satisfy
---------------------
any obligation to issue shares of Stock upon exercise of Warrants, the Company
will, at all times through the close of business on the Expiration Date, reserve
and keep available, free from preemptive rights and out of its aggregate
authorized but unissued shares of Stock, the number of shares of Stock
deliverable upon the exercise of all outstanding Warrants. In addition, so long
as the Stock is listed on a material stock exchange or is quoted on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ"), the
Company will use its best efforts to list, or to be quoted, as the case may be,
subject to notice of issuance, the Stock issuable upon the exercise of the
Warrants on any such stock exchange or on NASDAQ, as the case may be.
The Company covenants that all shares of Stock issued upon exercise of the
Warrants will, upon issuance in accordance with the terms of this Agreement, be
fully paid and nonassessable and free from all preemptive rights.
ARTICLE III
OTHER TERMS OF WARRANTS
Section 3.1 [Call of Warrants by the Company. IF WARRANTS ISSUED HEREUNDER
-------------------------------
ARE CALLABLE BY THE COMPANY -- The Company shall have the right to call and
repurchase any or all Warrants on or after ^,^ (the "Call Date") and upon the
occurrence of [describe events or circumstances under which the Company may call
the Warrants] (the "Call Terms") at a price of $^ per Warrant (the "Call
Price"). Notice of such Call Price, Call Date and Call Terms shall be given to
registered Holders of Warrants in the manner provided in Section 7.5.]
Section 3.2 Adjustment of Exercise Price and Number of Shares Purchasable or
----------------------------------------------------------------
Number of Warrants. The Exercise Price, the number of shares of Stock
- ------------------
purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment from time to time upon the occurrence of
the events enumerated in this Section 3.2.
(a) Dividends or Distributions in Shares of Stock. In case the Company
---------------------------------------------
shall pay or make a dividend or other distribution on its Stock in shares of its
Stock, the Exercise Price in effect at the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be increased by dividing such
Exercise Price by a fraction of which the numerator shall be the number of
shares of Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (a), the number of shares of Stock at any time outstanding shall
not include shares held in the treasury of the Company. The Company will not pay
any dividend or make any distribution on shares of Stock held in the treasury of
the Company.
(b) Rights or Warrants. In case the Company shall issue rights or
------------------
warrants to all holders of shares of its Stock entitling them to subscribe for
or purchase shares of Stock at a price per share less than the current market
price per share (determined as provided in paragraph (f) of this
5
<PAGE>
Section 3.2) of Stock on the date fixed for the determination of stockholders
entitled to receive such rights or warrants, the Exercise Price in effect at the
opening of business on the day following the date fixed for such determination
shall be increased by dividing such Exercise Price by a fraction of which the
numerator shall be the number of shares of Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of
Stock which the aggregate of the offering price of the total number of shares of
Stock so offered for subscription or purchase would purchase at such current
market price and the denominator shall be the number of shares of Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Stock so offered for subscription or purchase, such
increase to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes of this
paragraph (b), the number of shares of Stock at any time outstanding shall not
include shares held in the treasury of the Company. The Company will not issue
any rights or warrants in respect of shares of Stock held in the treasury of the
Company.
(c) Subdivision or Combination. In case outstanding shares of Stock shall
--------------------------
be subdivided into a greater number of shares of Stock, the Exercise Price in
effect at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately increased, and,
conversely, in case outstanding shares of Stock shall each be combined into a
smaller number of shares of Stock, the Exercise Price in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(d) Dividend or Distribution of Assets. In case the Company shall, by
----------------------------------
dividend or otherwise, distribute to all holders of shares of Stock, evidences
of its indebtedness or assets (including securities, but excluding any rights or
warrants referred to in paragraph (b) of this Section 3.2, any dividend or
distribution paid in cash out of [current net income or capital surplus] of the
Company and any dividend or distribution referred to in paragraph (a) of this
Section 3.2), the Exercise Price shall be adjusted so that the same shall equal
the price determined by dividing the Exercise Price in effect immediately prior
to the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in paragraph (f)
of this Section 3.2) of Stock on the date fixed for such determination less the
then fair-market value (as determined by the Board of Directors of the Company
or any duly authorized committee thereof, in the exercise of its sole discretion
and whose determination shall be conclusive and described in a Board Resolution
filed with the Warrant Agent and any other registrar) of the portion of the
assets or evidences of indebtedness so distributed applicable to one share of
Stock and the denominator shall be such current market price per share of Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following the date fixed for the determination of stockholders
entitled to receive such distribution.
(e) Reclassification. The reclassification of the Stock into securities
----------------
other than such Stock [(other than any reclassification upon a consolidation or
merger to which paragraph (k) of this Section 3.2 applies)] shall be deemed to
involve (i) a distribution of such securities other
6
<PAGE>
than such Stock to all holders of Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the determination of
stockholders entitled to receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (d) of this Section 3.2), and
(ii) a subdivision or combination, as the case may be, of the number of shares
of Stock outstanding immediately prior to such reclassification into the number
of shares of Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (c) of this Section 3.2).
(f) Current Market Price. For the purpose of any computation under paragraphs
--------------------
(b) and (d) of this Section 3.2, the current market price per share of Stock on
any date shall be deemed to be the average of the daily closing prices for the ^
consecutive Business Days selected by the Company commencing not less than ^ nor
more than ^ Business Days before the day in question. The closing price for each
day shall be the last reported sales price regular way or, in case no such
reported sale takes place on such day, the average of the reported closing bid
and asked prices regular way, in either case on the New York Stock Exchange (the
"NYSE") or, if such Stock is not listed or admitted to trading on the NYSE, on
the principal United States national securities exchange on which such Stock is
listed or admitted to trading or, if not listed or admitted to trading on any
United States national securities exchange, on NASDAQ or, if such Stock is not
listed or admitted to trading on any United States national securities exchange
or quoted on NASDAQ, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any NYSE member firm selected from time
to time by the Company for such purpose. In the event that no such market
trading exists, the current market price will be determined by three independent
nationally reorganized investment banking firms selected by the Company in such
manner as the Board of Directors of the Company or any duly authorized committee
thereof deems appropriate. As used herein, the term "Business Day" means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions where Warrants may be surrendered for exercise are
authorized or obligated by law or executive order to close.
(g) Adjustments for Tax Purposes. The Company may make such adjustments
----------------------------
in the Exercise Price, in addition to those required by paragraphs (a), (b), (c)
and (d) of this Section 3.2, as it considers to be advisable in order that any
event treated for federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the recipients.
(h) No Adjustment Below Par Value. Notwithstanding the provisions of this
-----------------------------
Section 3.2, the Exercise Price shall not be increased such that the price paid
per share would be less than the par value thereof as a result of any adjustment
made hereunder unless, under applicable law then in effect, Warrants may be
exercised, at such lower Exercise Price, for legally issued, fully paid and
nonassessable shares of Stock.
(i) Permitted Distributions. The granting of the right to purchase shares
-----------------------
of Stock (whether from treasury shares or otherwise), pursuant to (i) any
dividend or interest reinvestment plan or Stock purchase plan providing for the
reinvestment of dividends or interest payable on securities of the Company
and/or the investment of periodic optional payments; and (ii) any
7
<PAGE>
stock option plans and/or employee benefit or similar plans shall not be deemed
to constitute an issue of rights or warrants by the Company.
(j) No Adjustments Necessary. No adjustment in the Exercise Price shall
------------------------
be required unless such adjustment would require an increase or decrease of at
least one percent in such Exercise Price, provided, however, that any adjustment
-------- -------
which by reason of this paragraph (j) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 3.2 shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be.
(k) Successor Company. In case of any reclassification or change of
-----------------
outstanding shares of Stock (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination), or in case of any merger or consolidation of the
Company with one or more other corporations or other entities (other than a
merger or consolidation in which the Company is the continuing corporation and
which does not result in any reclassification or change of outstanding shares of
Stock), or in case of the merger of the Company into another corporation or
other entity, or in case of any sale or conveyance to another corporation of the
property or assets of the Company as an entirety or substantially as an
entirety, the Holder of Warrants of each series then outstanding shall have the
right to exercise such Warrant Certificates for the kind and amount of shares of
capital stock or other securities and property, including cash, receivable upon
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of shares of Stock for which such Warrant might have been
exercised immediately prior to such reclassification, change consolidation,
merger, sale or conveyance. In any such case, the Company, or such successor or
purchasing corporation or other entity, as the case may be, shall execute and
deliver to the Warrant Agent a supplemental Warrant Agreement containing
provisions to the effect set forth above and providing further for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section. The above provisions shall similarly apply to
successive reclassifications, changes, consolidation, mergers, sales and
conveyances.
(l) Company Determination Final. Any determination that the Company or
---------------------------
the Board of Directors of the Company or any duly authorized committee thereof
must make pursuant to this Section 3.2 is conclusive.
(m) Adjustments and Warrant Certificates. Irrespective of any adjustments
------------------------------------
in the number or kind of shares purchasable upon the exercise of the Warrants,
Warrant Certificates theretofore or thereafter issued may continue to express
the same number and kind of shares per Warrant as are stated on the Warrant
Certificates initially issuable pursuant to this Agreement.
(n) Subsequent Event. After an adjustment to the Exercise Price under
----------------
this Section 3.2, any subsequent event requiring an adjustment under this
Section 3.2 shall cause an adjustment to the Exercise Price as so adjusted.
(o) To the extent the Warrants become convertible into cash, no adjustment
need be made thereafter as to the amount of cash into which such Warrants are
exercisable. Interest will not accrue on the cash.
8
<PAGE>
ARTICLE IV
REGISTRATION, EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 4.1 Registration, Exchange and Transfer of Warrant Certificates.
-----------------------------------------------------------
The Warrant Agent shall keep, at its corporate trust office [and at ^], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and transfers of outstanding Warrant Certificates
upon surrender at the corporate trust office of the Warrant Agent [or at ^] of
Warrant Certificates properly endorsed [or accompanied by appropriate
instruments of transfer] and accompanied by written instructions for [transfer
or] exchange, all in the form satisfactory to the Company and the Warrant Agent.
[IF OFFERED SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE --
Prior to the Detachable Date, a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which such Warrant
Certificate was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, on or prior to the Detachable Date, each transfer or exchange of
an Offered Security [on the register of the Offered Securities] shall operate
also to transfer or exchange the Warrant Certificate or Certificates to which
such Offered Security was initially attached. After the Detachable Date, upon]
[IF OFFERED SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR IF
WARRANTS ALONE -- Upon] surrender at the corporate trust office of the Warrant
Agent [or at ^] of Warrant Certificates properly endorsed [or accompanied by
appropriate instruments of transfer] and accompanied by written instructions for
[transfer or] exchange, all in form satisfactory to the Company and the Warrant
Agent, such Warrant Certificates may be exchanged for other Warrant Certificates
or may be transferred in whole or in part; provided that Warrant Certificates
issued in exchange for [or upon transfer of] surrendered Warrant Certificates
shall evidence the same aggregate number of Warrants as the Warrant Certificates
so surrendered. No service charge shall be made for any exchange [or transfer]
of Warrant Certificates, but the Company may require payment of a sum sufficient
to cover any stamp or other tax or governmental charge that may be imposed in
connection with any such exchange [or transfer]. Whenever any Warrant
Certificates are so surrendered for exchange [or transfer], the Company shall
execute (as provided in Section 1.3 hereof) and an authorized officer of the
Warrant Agent shall manually authenticate (as provided in Section 1.3 hereof)
and deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates as so requested. The Warrant Agent shall not be required to
effect any exchange [or transfer] which would result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange [or transfer] of Warrant Certificates shall evidence the same
obligations, and be entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such exchange [or transfer].
Section 4.2 Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
---------------------------------------------------------
If any mutilated Warrant Certificate is surrendered to the Warrant Agent and
such security or indemnity as may be required by the Warrant Agent or the
Company to save each of them and any agent of either of them harmless is
provided, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company
9
<PAGE>
shall execute (as set forth in Section 1.3 hereof) and an officer of the Warrant
Agent shall manually authenticate (as set forth in Section 1.3 hereof) and
deliver in exchange therefor a new Warrant Certificate of like tenor, evidencing
a like number of Warrants, and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Company and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Warrant Certificate and of the ownership thereof 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
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute (as set forth in Section 1.3 hereof) and
upon its request an officer of the Warrant Agent shall manually authenticate (as
set forth in Section 1.3 hereof) and deliver, in lieu of any such destroyed,
lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor,
evidencing a like number of warrants, and bearing a number not contemporaneously
outstanding. Upon the issuance of any new Warrant Certificate under this Section
4.2, 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 Warrant Agent) connected
therewith. Every new Warrant Certificate issued pursuant to this Section 4.2 in
lieu of any destroyed, lost or stolen Warrant Certificate shall evidence an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Agreement equally
and proportionately with any and all other Warrant Certificates duly issued
hereunder. The provisions of this Section 4.2 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Section 4.3 Persons Deemed Owners. [IF OFFERED SECURITIES AND WARRANTS
---------------------
WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date, the
Company, the Warrant Agent and all other persons may treat the owner of any
Offered Security as the owner of the Warrant Certificates initially attached
thereto for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced by such Warrant Certificates, any notice
to the contrary notwithstanding. After the Detachable Date, and] Prior to due
presentment of a Warrant Certificate for registration of transfer, the Company,
the Warrant Agent and all other persons may treat the Holder as the owner
thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
Section 4.4 Cancellation of Warrant Certificates. Any Warrant
------------------------------------
Certificate surrendered for exchange[, transfer] or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent, and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by it and shall not be reissued and,
except as expressly permitted by this Agreement, no Warrant Certificate shall be
issued hereunder in lieu or in exchange thereof. The Company may at any time
deliver to the Warrant Agent for cancellation any Warrant Certificates
previously issued hereunder which the Company may have acquired in any manner
whatsoever, and all Warrant Certificates so delivered shall be promptly
cancelled by the Warrant Agent. All cancelled Warrant Certificates held by the
Warrant Agent shall be disposed of, as instructed by the Company, subject to
applicable law.
10
<PAGE>
ARTICLE V
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 No Rights as Stockholders Conferred by Warrants or Warrant
----------------------------------------------------------
Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle
- ------------
the Holder thereof to any of the rights of a stockholder, including, without
limitation, the right [to vote or] to receive dividends (except in certain cases
for adjustments as expressly provided in Article III hereof).
Section 5.2 Holder of Warrant Certificate May Enforce Rights.
------------------------------------------------
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of the Warrant Agent, any stockholder
or the Holder of any other Warrant Certificate, may, on its own behalf and for
its own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce or otherwise in respect of
its right to exercise the Warrant or Warrants evidenced by his or her Warrant
Certificate in the manner provided in the Warrant Certificates and in this
Agreement.
ARTICLE VI
CONCERNING THE WARRANT AGENT
Section 6.1 Warrant Agent. The Company hereby appoints ^ as Warrant
-------------
Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and ^ hereby
accepts such appointment. The Warrant Agent shall have the power and authority
granted to and conferred upon it in the Warrant Certificates and hereby and such
further power and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such power and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
Section 6.2 Conditions of Warrant Agent's Obligations. The Warrant Agent
-----------------------------------------
accepts its obligations herein set forth, upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay
--------------------------------
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by the Warrant Agent in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and
hold it harmless against, any loss, liability or expense incurred without
negligence, bad faith or willful misconduct on the part of the Warrant Agent,
arising out of or in connection with its acting as such Warrant Agent hereunder,
including the reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance at any time of
its powers or duties hereunder.
11
<PAGE>
(b) Agent for the Company. In acting under this Warrant Agreement and in
--------------------
connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligation or relationship of
agency or trust for or with any of the owners or Holders of the Warrant
Certificates.
(c) Counsel. The Warrant Agent may consult with counsel, which may
-------
include counsel for the Company, and the written advice of such counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered, or omitted by it hereunder in good faith and in reliance thereon.
(d) Documents. The Warrant Agent shall be protected and shall incur no
---------
liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificates, notice, direction, consent, other certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, any of its officers,
--------------------
directors and employees, or any other agent of the Company, in its individual or
any other capacity, may become the owner of, or acquire any interest in, any
Warrant Certificates, with the same rights that it would have if it were not
such Warrant Agent, officer, director, employee or other agent, and, to the
extent permitted by applicable law, it may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of securities
or other obligations of the Company as freely as if it were not such Warrant
Agent, officer, director, employee or other agent.
(f) No Liability for Interest. The Warrant Agent shall not be under any
-------------------------
liability for interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Warrant Certificates unless
otherwise agreed to in writing by the Company and the Warrant Agent and except
for the negligence, bad faith or willful misconduct of the Warrant Agent.
(g) No Liability for Invalidity. The Warrant Agent shall not incur any
---------------------------
liability with respect to the validity of this Agreement or any of the Warrant
Certificates.
(h) No Responsibility for Representations. The Warrant Agent shall not be
-------------------------------------
responsible for any of the recitals or representations contained herein or in
the Warrant Certificates (except as to the Warrant Agent's Certificate of
Authentication thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
----------------------
perform such duties as are herein and in the Warrant Certificates specifically
set forth and no implied duties or obligations shall be read into this Agreement
or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall
not be under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a reasonable
time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the Warrant Agent
and delivered by it to the Company pursuant to this
12
<PAGE>
Agreement or for the application by the Company of the proceeds of the Warrant
Certificates or any exercise of the Warrants evidenced thereby. The Warrant
Agent shall have no duty or responsibility in case of any default by the Company
in the performance of its covenants or agreements contained herein or in the
Warrant Certificates or in the case of the receipt of any written demand from a
Holder of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 7.4 hereof, to make any demand upon the Company.
Section 6.3 Resignation, Removal and Appointment of Successor. (a) The
-------------------------------------------------
Company agrees, for the benefit of the Holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all of the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which it desires its resignation to become effective; provided that, without
the consent of the Company, such date shall not be less than three months after
the date on which such notice is given. The Warrant Agent hereunder may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company by an Authorized Officer and specifying such removal
and the date on which the Company expects such removal to become effective. Such
resignation or removal shall take effect upon the appointment by the Company of
a successor Warrant Agent (which shall be a bank or trust company organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia and authorized under such laws to exercise corporate
trust powers) by an instrument in writing filed with such successor Warrant
Agent and the acceptance of such appointment by such successor Warrant Agent
pursuant to Section 6.3(d) hereof. [The obligations of the Company under Section
6.2(a) hereof shall continue to the extent set forth therein notwithstanding the
resignation or removal of the Warrant Agent.]
(c) In case at any time the Warrant Agent shall resign, or be removed, or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or shall file a petition seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or under any other applicable
Federal or State bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property or assets, or shall
admit in writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of its property or
assets shall be appointed, or if an order of any court shall be entered for
relief against it under the provisions of Title 11 of the United States Code, as
now constituted or hereafter amended, or under any other applicable Federal or
State bankruptcy law or similar law, or if any public officer shall have taken
charge or control of the Warrant Agent or of its property, assets or affairs for
the purpose of rehabilitation, conservation or liquidation, it shall be
disqualified from serving as Warrant Agent and a successor Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment as
aforesaid of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so disqualified shall cease to be the Warrant
Agent hereunder.
13
<PAGE>
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation or other entity into which the Warrant Agent hereunder
may be merged or converted or any corporation or other entity with which the
Warrant Agent may be consolidated, or any corporation or other entity resulting
from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation or other entity succeeding to all or substantially
all of the corporate trust business of the Warrant Agent, provided that it shall
be qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Consolidations and Mergers of the Company and Sales, Leases
-----------------------------------------------------------
and Conveyances Permitted Subject to Certain Conditions. The Company may
- -------------------------------------------------------
consolidate with, or sell or convey all or substantially all of its assets to,
or merge with or into any other corporation or other entity, provided that in
any such case, either the Company shall be the continuing corporation, or the
corporation or other entity (if other than the Company) formed by such
consolidation or into which the Company is merged or which acquired by purchase
or conveyance all or substantially all of the assets of the Company shall
expressly assume the obligations of the Company hereunder.
Section 7.2 Rights and Duties of Successor Company. In case of any such
--------------------------------------
consolidation, merger, sale, lease or conveyance referred to in Section 7.1
hereof and upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein, and the predecessor, except in the event
of a lease, shall be relieved of any further obligation under this Agreement and
the Warrants. Such successor thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the Warrant
Certificates issuable pursuant to the terms hereof.
In case of any such consolidation, merger, sale, lease or conveyance
referred to in Section 7.1 hereof or this Section 7.2, such changes in
phraseology and form (but not in substance) may be made in Warrant Certificates
thereafter to be issued as may be appropriate.
Section 7.3 Amendment. This Agreement may be amended by the parties
---------
hereto, without the consent of the Holder of any Warrant Certificate, for the
purpose of curing any
14
<PAGE>
ambiguity, or curing, correcting or supplementing any defective provision
contained herein, or making such provisions in regard to matters or questions
arising under this Agreement as the Company may deem necessary or desirable;
provided that such action shall not adversely affect the interests of the
Holders of the Warrant Certificates in any material respect. Any amendment or
supplement to this Agreement or the Warrants that has a material adverse effect
on the interests of Holders of any series of Warrants shall require the written
consent of the Holders of a majority of the then outstanding Warrants of such
series. Except as set forth in Section 3.2 hereof, the consent of each Holder of
a Warrant affected shall be required for any amendment pursuant to which (i) the
Exercise Price would be increased, (ii) the number of shares of Stock
purchasable upon exercise of Warrants would be decreased, (iii) the Expiration
Date would be accelerated or (iv) the number of outstanding Warrants would be
reduced the consent of whose Holders would be required for any amendment or
modification of this Agreement. The Warrant Agent may, but shall not be
obligated to, enter into any amendment to this Agreement which affects the
Warrant Agent's own rights, duties or immunities under this Agreement or
otherwise.
Section 7.4 Notices and Demands to the Company and Warrant Agent. If the
----------------------------------------------------
Warrant Agent shall receive any notice or demand addressed to the Company by the
Holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 7.5 Notices to Warrant Holders. Upon any adjustment of the
--------------------------
number of shares purchasable upon exercise of each Warrant, the Exercise Price
or the number of Warrants outstanding pursuant to Section 3.2, the Company
within ^ calendar days thereafter shall (i) cause to be filed with the Warrant
Agent a certificate [of a firm of independent public accountants of recognized
standing selected by the Company (who may be the regular auditors of the
Company)] [signed by an Authorized Officer] setting forth the Exercise Price and
either the number of shares of Stock and other securities or assets purchasable
upon exercise of each Warrant or the additional number of Warrants to be issued
for each previously outstanding Warrant, as the case may be, after such
adjustment and setting forth in reasonable detail the method of calculation and
the facts upon which such adjustment are made, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause to be given to each of the registered Holders of the Warrant
Certificates at such Holder's address appearing on the Warrant register written
notice of such adjustments by first-class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as part of the
notice required to be mailed under the provisions of this Section 7.5.
Pursuant to Sections 3.1 [add other sections as applicable], the Company
shall cause written notice of such Call Price, Call Date and Call Terms
[reference other items as applicable], as the case may be, to be given as soon
as practicable to the Warrant Agent and to each of the registered Holders of the
Warrant Certificates by first-class mail, postage prepaid, at such Holder's
address appearing on the Warrant register. In addition to the written notice
referred to in the preceding sentence, the Company shall make a public
announcement in a daily morning newspaper of general circulation in ^ of such
Call Price, Call Date, and Call Terms [reference other items as applicable], as
the case may be, at least once a week for two successive weeks prior to the
implementation of such terms.
In the event:
15
<PAGE>
(a) that the Company shall pay any dividend or make any distribution
to the holders of shares of Stock otherwise than in cash charged against
[current net income or capital surplus] of the Company and its consolidated
subsidiaries or in shares of Stock; or
(b) that the Company shall offer for subscription or purchase, pro
rata, to the holders of Stock any additional shares of stock of any class
or any securities exercisable for or exchangeable for stock of any class;
or
(c) of any reclassification or change of outstanding shares of Stock
(other than a change in par value, or from par value to no par value, or
from no par value to par value), or of any merger of consolidation of the
Company with, or merger of the Company into, another corporation or other
entity (other than a merger or consolidation in which the Company is the
continuing corporation and which does not result in reclassification or
change of outstanding shares of Stock), or of any sale or conveyance to
another corporation or other entity of the property of the Company as an
entirety or substantially as an entirety; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then, and in any one or more of such events, the Company will file with the
Warrant Agent and any other registrar written notice thereof at least ^ days (or
^ days in any case specified in clause (a) or (b) above) prior to (i) the record
date fixed with respect to any of the events specified in (a) and (b) above and
(ii) the effective date of any of the events specified in (c) above; and shall
mail promptly after providing such notice to the Warrant Agent or such other
registrar a copy of such notice to the Holders thereof at their last addresses
as they shall appear upon the Warrant register by first-class mail, postage
prepaid, and make a public announcement in a daily newspaper of general
circulation in ^ of such event. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
Section 7.6 Addresses. Any communications from the Company to the
---------
Warrant Agent with respect to this Agreement shall be addressed to ^, Attention:
^, and any communications from the Warrant Agent to the Company with respect to
this Agreement shall be addressed to Bay View Capital Corporation, 1840 Gateway
Drive, San Mateo, California 94404, Attention: ^ (or such other address as shall
be specified in writing by the Warrant Agent or by the Company).
Section 7.7 GOVERNING LAW. THE VALIDITY, INTERPRETATION AND PERFORMANCE
-------------
OF THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
Section 7.8 Delivery of Prospectus. The Company will furnish to the
----------------------
Warrant Agent sufficient copies of a prospectus, appropriately amended or
supplemented, relating to the Stock (the "Prospectus"), and the Warrant Agent
agrees that upon the exercise of any Warrant and simultaneously with or prior to
the delivery of any shares of Stock issuable upon such exercise,
16
<PAGE>
the Warrant Agent will deliver a Prospectus to each person designated to receive
any shares of Stock.
Section 7.9 Obtaining of Governmental Approvals. The Company will from
-----------------------------------
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and State
laws (including, without limitation, to the extent required, the maintenance of
the effectiveness of a registration statement in respect of the Warrants and
Stock under the Securities Act of 1933, as amended), which may be or become
required in connection with [the issuance, sale, transfer and delivery of the
Warrant Certificates,] exercise of the Warrant Certificates and the original
issuance, sale, transfer and delivery of the Stock issued upon exercise of the
Warrants or upon the expiration of the period during which Warrant Certificates
are exercisable.
Section 7.10 Persons Having Rights Under Warrant Agreement. Nothing in
---------------------------------------------
this Agreement expressed or implied and nothing that may be inferred from any of
the provisions herein is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the Company, the Warrant Agent and
the Holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and their successors and of the
Holders of the Warrant Certificates.
Section 7.11 Fractional Shares. The Company shall not be required to
-----------------
deliver fractions of shares of Common Stock upon exercises of Warrants. If more
than one Warrant shall be surrendered for exercise at one time by the same
Holder, the number of full shares of Common Stock which shall be deliverable
upon exercise thereof shall be computed on the basis of the aggregate of the
Warrants so surrendered. Instead of any fractional shares of Common Stock which
would otherwise be issuable upon exercise of any Warrant or Warrants (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the current market
price per share of Common Stock (as determined in accordance with Section 3.2(f)
or in any other manner prescribed by the Board of Directors of the Company or
any duly authorized committee thereof) at the close of business on the last
Business Day prior to the Date of Exercise.
Section 7.12 Headings. The Article and Section headings herein and the
--------
Table of Contents are inserted for convenience of reference only and shall not
affect the construction of any of the provisions hereof.
Section 7.13 Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
Section 7.14 Inspection of Agreement. A copy of this Agreement shall be
-----------------------
available at all reasonable times at the principal corporate trust office of the
Warrant Agent [and at ^] for
17
<PAGE>
inspection by the Holder of any Warrant Certificate. The Warrant Agent may
require such Holder to submit its Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION
By:_____________________________________
Name:
Title:
[NAME OF WARRANT AGENT]
By:_____________________________________
Name:
Title:
18
<PAGE>
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Front Face of Warrant Certificate]
Form of Legend if Offered Securities [Prior to ^, this Warrant Certificate
with Warrants which are not may be transferred or exchanged if
immediately detachable __________ and only if the [Title of Security]
to which it was initially attached is
so transferred or exchanged.]
Form of Legend if Warrants are not [Prior to ^, Warrants evidenced by
immediately exercisable __________ this Warrant Certificate cannot be
exercised in whole or in part.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER 5:00 P.M. (NEW YORK CITY TIME) ON ^,^
BAY VIEW CAPITAL CORPORATION
Warrant Certificate representing
Warrants to purchase
[name of security]
as described herein.
No.^ ^ Warrants
This certifies that ^ or registered assigns is the registered owner of the
above indicated number of Warrants, each Warrant entitling such registered owner
to purchase, at any time [after 5:00 p.m. (New York City time) on ^, ^, and] on
or before 5:00 p.m. (New York City time) on ^, ^ (the "Expiration Date"), [one]
share of the common stock, par value $0.01 per share (the "Stock"), of Bay View
Capital Corporation (the "Company"), on the following basis.* During such
period, each Warrant shall entitle the Holder thereof, subject to the provisions
of the Warrant Agreement (as defined below), to purchase from the Company [one]
share of Stock at the exercise price of $^ (the "Exercise Price"). The Holder of
this Warrant Certificate may exercise the Warrants evidenced hereby, in whole or
in part, by surrendering this Warrant Certificate, with the exercise form set
forth hereon duly completed, accompanied by payment in full, in lawful money of
the United States of America, [in cash or by certified check or official bank
check in immediately available funds] [by wire transfer in immediately available
funds],
____________________
*Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants.
A-1
<PAGE>
the Exercise Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined), at the corporate trust office of [name of Warrant Agent],
or its successor, as warrant agent (the "Warrant Agent") [or at ^], and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement. The number of shares of Stock issuable upon exercise of the
Warrants evidenced hereby and certain other terms relating thereto are subject
to adjustment on the terms and subject to the conditions set forth in the
Warrant Agreement referred to below.
The term "Holder" as used herein shall mean [IF OFFERED SECURITIES WITH
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- prior to ^, ^ (the "Detachable
Date"), the registered owner of the Company's [title of Offered Securities] to
which such Warrant Certificate was initially attached, and after such Detachable
Date,] the person in whose name at the time such Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that purpose
pursuant to Section 4.1 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase [any number of whole] shares of Stock. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the registered owner hereof a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of ^, ^ (the "Warrant Agreement"), between the Company and
the Warrant Agent and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. Copies of the Warrant
Agreement are on file at the above-mentioned office of the Warrant Agent [and at
^].
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--
Prior to ^, ^ (the "Detachable Date"), this Warrant Certificate may be exchanged
or transferred only together with the [title of Offered Security] (the "Offered
Security") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. Additionally, on or prior to the Detachable Date, each
transfer of such Offered Security on the register of the Offered Securities
shall operate also to transfer this Warrant Certificate. After the Detachable
Date, this] [IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY
DETACHABLE OR WARRANTS ALONE--This] Warrant Certificate and all rights
hereunder, may be transferred when surrendered at the corporate trust office of
the Warrant Agent [or at ^] by the registered owner or his assigns, in person or
by an attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--
Except as provided in the immediately preceding paragraph, after] [IF OFFERED
DEBT SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE
- -- After] authentication by the Warrant Agent and prior to the Expiration Date,
this Warrant Certificate may be exchanged at the corporate trust office of the
Warrant Agent [or at ^] for Warrant Certificates representing the same aggregate
number of Warrants.
A-2
<PAGE>
This Warrant Certificate shall not entitle the registered owner hereof to
any of the rights of a stockholder, including, without limitation, the right [to
vote or] to receive dividends.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid obligatory for any purpose
until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed.
Dated: _______________
BAY VIEW CAPITAL CORPORATION
By:_____________________________________
Name:
Title:
Attest:
_____________________________________
Name:
Title:
Certificate of Authentication
This is one of the Warrant Certificates referred to in the within-mentioned
Warrant Agreement.
_____________________________________
As Warrant Agent
By:__________________________________
Authorized Signature
A-3
<PAGE>
[FORM OF WARRANT CERTIFICATE]
[Reverse Face of Warrant Certificate]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check
payable in immediately available funds] [by wire transfer in immediately
available funds], the Exercise Price in full for each of the Warrants exercised,
to ^, Corporate Trust Department, ^, Attn: [or at ^], which payment should
specify the name of the Holder of this Warrant Certificate and the number of
Warrants exercised by such Holder. In addition, the Holder of this Warrant
Certificate should complete the information required below and present in person
or mail by registered mail this Warrant Certificate to the Warrant Agent at the
addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants, represented
by this Warrant Certificate, to purchase ^ shares of the common stock, par value
$0.01 per share (the "Stock"), of Bay View Capital Corporation and represents
that he or she has tendered payment for such shares of Stock [in cash or by
certified check or official bank check payable in immediately available funds]
[by wire transfer in immediately available funds] to the order of Bay View
Capital Corporation, in the amount of $^ in accordance with the terms hereof.
The undersigned requests that said shares of Stock be registered in such names
and delivered, all as specified in accordance with the instructions set forth
below.
If said number of shares of Stock is less than all of the shares of Stock
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the remaining balance of the Warrants evidenced hereby be issued
and delivered to the undersigned unless otherwise specified in the instructions
below.
Dated:
Name:___________________________________
(Please Print)
_________________________________
(Insert Social Security
or Other Identifying
Number of Holder)
Address:________________________________
________________________________________
________________________________________
<PAGE>
________________________________________
Signature
(Signature must conform in all respects
to name of Holder as specified on the
front face of the Warrant Certificate
and 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 Warrant Agent, which
requirements include membership or
participation in the Securities Transfer
Agents Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Warrant
Agent in addition to, or in substitution
for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.)
Signature Guaranteed:__________________________
_______________________________________________
This Warrant may be exercised at the following addresses:
By hand at: ________________________________
________________________________
________________________________
By mail at: ________________________________
________________________________
________________________________
(Instructions as to form and delivery of certificates representing shares
of Stock and/or Warrant Certificates):
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
<PAGE>
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED ____________________________ hereby sells, assigns and
transfers unto
________________________________________
Please print name and address
(including zip code)
Please insert social security or
other identifying number
________________________________
__________________________________________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint __________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
________________________________________
Signature
(Signature must conform in all respects
to name of Holder as specified on the
front face of the Warrant Certificate
and 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 Warrant Agent, which
requirements include membership or
participation in the Securities Transfer
Agents Medallion Program ("STAMP") or
such other "signature guarantee program"
as may be determined by the Warrant
Agent in addition to, or in substitution
for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.)
Signature Guaranteed:
________________________________
<PAGE>
EXHIBIT 4(h)
[LEGEND FOR INCLUSION IN GLOBAL SECURITY -- THIS [NOTE/DEBENTURE] IS A GLOBAL
SECURITY REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS
[NOTE/DEBENTURE] IS EXCHANGEABLE FOR [NOTES/DEBENTURES] REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR [NOTES/DEBENTURES] IN DEFINITIVE FORM, THIS
[NOTE/DEBENTURE] MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.]
[LEGEND FOR INCLUSION IN GLOBAL SECURITY IF DTC IS DEPOSITORY -- UNLESS THIS
[NOTE/DEBENTURE] IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS DEFINED BELOW)
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
[NOTE/DEBENTURE] ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No.:
CUSIP No.: Principal Amount: $
Bay View Capital Corporation
% [Title] due
Bay View Capital Corporation, a Delaware corporation (hereinafter called
the "Company", which term includes any successor corporation under the Indenture
referred to [on the reverse hereof/below]), for value received, hereby promises
to pay to , or registered assigns, the principal sum of DOLLARS ($ ) on ,
and to pay interest thereon from , or from the most recent date to which
interest has been paid or duly provided for, semiannually on and of each
year (each, an "Interest Payment Date"), commencing , , and at Maturity, at
the rate of % per annum, until the principal hereof is paid or duly made
available for payment. Interest on this [Note/Debenture] shall be calculated
on the basis of a 360-day year consisting of twelve 30-day months. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this [Note/Debenture] (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the or (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date shall forthwith cease to be payable to the registered
Holder hereof on the relevant Regular Record Date by virtue of having been
such Holder, and may be paid to the Person in whose name this [Note/Debenture]
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to the Holder of this [Note
/Debenture] 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 [Notes/Debentures] may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in such Indenture.
Payment of the principal of and [premium, if any, and] the interest on this
[Note/Debenture] will be made at the office or agency of the Company maintained
for that purpose in the The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private
<PAGE>
debts; provided, however, that, at the option of the Company, interest may be
paid by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by transfer to an account
maintained by the payee located in the United States.
This [Note/Debenture] is one of a duly authorized issue of Securities of
the Company (herein called the ["Notes/Debentures"]) issued and to be issued in
one or more series under an Indenture dated as of ^, 199^ (herein called,
together with [ADD REFERENCE TO ANY EXISTING SUPPLEMENTAL INDENTURES OR ANY
SUPPLEMENTAL INDENTURE ESTABLISHING THE TERMS OF SUCH SERIES] and all [other]
indentures supplemental thereto, the "Indenture") between the Company and ^, as
trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the [Notes/Debentures], and the terms upon which the
[Notes/Debentures] are, and are to be, authenticated and delivered. This
[Note/Debenture] is one of the series designated on the face hereof, limited
(subject to exceptions provided in the Indenture [and subject to the right of
the Company to reopen such series for issuances of additional Securities of such
series]) in aggregate principal amount to $^,000,000.
[INCLUDE FOR SUBORDINATED SECURITIES-- Subject to Section [404] of the
Indenture, the payment of the indebtedness evidenced by this [Note/Debenture]
is, to the extent and in the manner set forth in the Indenture, expressly
subordinated to all Senior Indebtedness (as such term is defined in the ^
Supplemental Indenture dated as of ^ between the Company and the Trustee) of the
Company. This [Note/Debenture] is issued subject to such provisions of the
Indenture, and each Holder of this [Note/Debenture], by accepting the same,
agrees to and shall be bound by such provisions and authorizes and directs the
Trustee on his behalf, as between the Holders of the [Notes/Debentures] and the
holders of such Senior Indebtedness, to take such action as may be necessary or
appropriate to effectuate such subordination as provided in the Indenture and
appoints the Trustee his attorney-in-fact for any and all such purposes.]
[INCLUDE IF SECURITIES ARE NOT SUBJECT TO REDEMPTION PRIOR TO MATURITY --
The [Notes/Debentures] are not subject to redemption prior to the Stated
Maturity of the principal thereof.]
[INCLUDE IF SECURITIES ARE REDEEMABLE PRIOR TO MATURITY OR INSERT OTHER
APPLICABLE REDEMPTION PROVISIONS -- The [Notes/Debentures] shall not be subject
to redemption prior to ^. The Company shall have the right to redeem the
[Notes/Debentures], in whole or in part from time to time, on or after ^, upon
not less than 30 nor more than 60 days notice, at the following prices
(expressed as percentages of the principal amount of the [Notes/Debentures] to
be redeemed) together (except as otherwise provided in the Indenture) with
accrued and unpaid interest, to, but excluding, the Redemption Date, if redeemed
during the 12-month period beginning ^ of the years set forth below:
<TABLE>
<CAPTION>
Redemption
Year Price
---- -----
<S> <C>
^ ..................................................... ^%
^ ..................................................... ^
^ ..................................................... ^
^ ..................................................... ^
^ ..................................................... ^
</TABLE>
and 100% of the principal amount thereof if redeemed on or after ^; provided,
however, that installments of interest whose Stated Maturity is on or prior to a
Redemption Date will be payable to the Holders of the [Notes/Debentures] (or one
or more Predecessor Securities) registered as such at the close of business on
the relevant Regular Record Dates according to their terms and the provisions of
the Indenture.]
If an Event of Default with respect to the [Notes/Debentures] shall occur
and be continuing, the principal of and accrued and unpaid interest on the
[Notes/Debentures] may be declared due and payable in the manner and with the
effect provided in the Indenture.
2
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of any series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this [Note/Debenture] shall be conclusive and
binding upon such Holder and upon all future Holders of this [Note/Debenture]
and of any [Notes/Debentures] issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this [Note/Debenture].
No reference herein to the Indenture and no provision of this
[Note/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
[premium, if any, and] interest on this [Note/Debenture], at the time, place and
rate, and in the coin or currency, herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this [Note/Debenture] may be registered on the Security
Register upon surrender of this [Note/Debenture] for registration of transfer at
the office or agency of the Company maintained for the purpose in any place
where the principal of and interest on this [Note/Debenture] are payable, duly
endorsed, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new [Notes/Debentures], of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The [Notes/Debentures] are issuable only in registered form without coupons
in the denominations of $1,000 and integral multiples of $1,000. As provided in
the Indenture and subject to certain limitations set forth therein, the
[Notes/Debentures] are exchangeable for a like aggregate principal amount of
[Notes/Debentures] of authorized denominations as requested by the Holders
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge and any other expenses (including fees and
expenses of the Trustee) that may be imposed in connection therewith, other than
in certain cases provided in the Indenture.
Prior to due presentment of this [Note/Debenture] for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this [Note/Debenture] is registered as the
owner hereof for all purposes, whether or not this [Note/Debenture] be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged
from its obligations with respect to the [Notes/Debentures] (subject to certain
exceptions) or (ii) the Company may be released from its obligations under
specified covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or Government Obligations sufficient
to pay and discharge the entire indebtedness on all [Notes/Debentures], and
satisfies certain other conditions, all as more fully provided in the Indenture.
In addition, the Indenture shall cease to be of further effect (subject to
certain exceptions) with respect to the [Notes/Debentures] when (1) either (A)
all [Notes/Debentures] previously authenticated and delivered have been
delivered (subject to certain exceptions) to the Trustee for cancellation, or
(B) all [Notes/Debentures] (i) have become due and payable or (ii) will become
due and payable at their Stated Maturity within one year or [(iii) are to be
called for redemption within one year] and, in the case of (i), (ii) [or (iii)]
above, the Company has irrevocably deposited with the Trustee money in an amount
sufficient to pay and discharge the entire indebtedness on all such
[Notes/Debentures] not theretofore delivered to the Trustee for cancellation,
and (2) the Company satisfies certain other conditions, all as more fully
provided in the Indenture.
3
<PAGE>
This [Note/Debenture] shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this [Note/Debenture] which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this [Note/Debenture] shall not be entitled to any
benefits under the Indenture or be valid or obligatory for any purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
[Seal] BAY VIEW CAPITAL CORPORATION
Attest: ____________________________ By: _____________________________
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
^, as Trustee
By: __________________________________________
Authorized Signatory
5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT - - ________ Custodian ________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to
and not as tenants in common Minors Act ________________
(State)
Additional abbreviations may also be used though not in the above list.
______________________________________
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------
- -------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- --------------------------------------------------------------------------------
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
______________________________________________________________________ Attorney
to transfer said security on the books of the Company with full power of
substitution in the premises.
Dated: _________________________________________________________________________
Notice: The signature to this assignment must correspond with the
name as it appears upon the face of the within security in every
particular, without alteration or enlargement or any change whatever.
6
<PAGE>
EXHIBIT 4(i)
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of [ ] among BAY VIEW CAPITAL CORPORATION, a
Delaware corporation (the "Company"), and [NAME OF DEPOSITARY], a [ ], as
Depositary, and all holders from time to time of Receipts (as hereinafter
defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of the Company's Preferred Stock (as
hereinafter defined) with the Depositary (as hereinafter defined) for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
the Receipts (as hereinafter defined) evidencing Depositary Shares (as
hereinafter defined) representing fractional interests in the shares of
Preferred Stock deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit Agreement
and the Receipts:
"Certificate of Designation" shall mean the [Certificate of Powers,
--------------------------
Designations, Preferences and Rights] of the [ ]% Series [ ] [Cumulative]
[Redeemable] [Convertible] [Exchangeable] Preferred Stock of the Company,
setting forth the terms of the Preferred Stock, filed with the Secretary of
State of the State of Delaware, including any certificate subsequently filed
with the Secretary of State of the State of Delaware in accordance with the DGCL
and setting forth a statement that a specified decrease in the number of shares
of Preferred Stock has been authorized by the Company.
"Certificate of Incorporation" shall mean the amended certificate of
----------------------------
incorporation, as the same may be further amended or restated from time to time,
of the Company, including all certificates of designation filed as part of such
certificate of incorporation.
"Company" shall mean Bay View Capital Corporation, a Delaware corporation,
-------
and its successors.
"Corporate Office" shall mean the corporate office of the Depositary at
----------------
which at any particular time its business in respect of matters governed by this
Deposit Agreement shall be
1
<PAGE>
administered, which at the date of this Deposit Agreement is located at the
office of the Depositary's service agent [ ].
"DGCL" means the General Corporation Law of the State of Delaware, as in
----
effect from time to time, or any successor thereto.
"Deposit Agreement" shall mean this agreement, as the same may be amended,
-----------------
modified or supplemented from time to time.
"Depositary" shall mean [Name of Depositary], a [ ], having its principal
----------
office in the United States and having a combined capital and surplus of at
least $50,000,000, and any successor as depositary hereunder, which successor
shall also have its principal office in the United States and a combined capital
and surplus of at least $50,000,000.
"Depositary Share" shall mean a fractional interest of [ ]th of a share of
----------------
Preferred Stock deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such share of Preferred Stock and held under this Deposit
Agreement, all as evidenced by the Receipts issued hereunder. Subject to the
terms of this Deposit Agreement, each owner of a Depositary Share representing
deposited Preferred Stock is entitled, proportionately with all other owners of
Depositary Shares representing deposited Preferred Stock, to all rights,
preferences and privileges of the Preferred Stock represented by such Depositary
Shares, including the dividend, voting, distribution, redemption and liquidation
rights contained in the Certificate of Designation and any other rights,
preferences and privileges contained in the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
------------------
provided, and for the purposes specified, in Section 7.5.
"New York Office" shall mean the office maintained by the Depositary in the
---------------
Borough of Manhattan, The City of New York for the execution and delivery,
transfer, surrender and exchange, split-up, combination[, exchange][,
conversion][, repurchase] and redemption of Receipts (and payment of amounts due
upon such redemption [or repurchase]), payment and distribution of all other
monies and property payable or distributable in respect of Receipts, and deposit
and withdrawal of Preferred Stock, which office at the date of this Deposit
Agreement is located at [ ].
"Preferred Stock" shall mean the Company's [ ]% Series [ ] [Cumulative]
---------------
[Redeemable] [Convertible][Exchangeable] Preferred Stock, no par value per
share.
"Receipt" shall mean a depositary receipt issued hereunder to evidence one
-------
or more Depositary Shares, whether in definitive or temporary form,
substantially in the form (subject to Section 2.1) set forth as Exhibit A
hereto.
"record date" shall mean the date fixed pursuant to Section 4.4.
-----------
"record holder" or "holder" as applied to a Receipt shall mean the person
------------- ------
in whose name such Receipt is registered on the books maintained by the
Depositary for such purpose.
2
<PAGE>
"Registrar" shall mean [Name of Registrar] or any bank or trust company
---------
appointed to register ownership and transfers of Receipts or the Preferred
Stock, as the case may be, as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
"Transfer Agent" shall mean [Name of Transfer Agent] or any bank or trust
--------------
company appointed to transfer the Receipts or the Preferred Stock, as the case
may be, as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transferability of Receipts. Definitive Receipts
------------------------------------
shall be engraved or printed or lithographed with steel-engraved borders
and underlying tint and shall be substantially in the form set forth in Exhibit
A annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company delivered in
compliance with Section 2.2, shall execute and deliver temporary Receipts which
may be printed, lithographed, typewritten, word-processed, mimeographed or
otherwise reproduced, substantially of the tenor of the definitive Receipts in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at the Corporate Office, the
New York Office and such additional offices, if any, as the Depositary may
designate, without charge to the holder. Upon surrender for cancellation of any
one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Deposit Agreement, and with respect to the
Preferred Stock deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized signatory of the Depositary, provided that such signature may be
a facsimile if a Registrar (other than the Depositary) shall have been appointed
and such Receipts are countersigned by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed as provided in the preceding sentence. The Depositary shall
record on its books each Receipt executed as provided above and delivered as
hereinafter provided.
3
<PAGE>
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred Stock, the Depositary Shares or the
Receipts may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.4, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions, the exercise of any conversion rights or to any notice
provided for in this Deposit Agreement and for all other purposes.
Section 2.2 Deposit of Preferred Stock; Execution and Delivery of
-----------------------------------------------------
Receipts in Respect Thereof. Concurrently with the execution of this Deposit
- ---------------------------
Agreement, the Company is delivering to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing [number of
firm shares] shares of Preferred Stock, properly endorsed or accompanied, if
required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary. In the event that the over-
allotment option granted to the underwriters pursuant to the
[Underwriting/Purchase] Agreement dated [ ] between the Corporation, [Managing
Underwriter] and the other underwriters named therein is exercised in whole or
in part and the issuance of the Depositary Shares issuable upon exercise of such
option occurs after the date of this Agreement, the Company shall, on or prior
to the date of delivery of such Depositary Shares, deliver to the Depositary a
certificate or certificates, registered in the name of the Depositary and
evidencing the shares of Preferred Stock represented by such Depositary Shares
(which shall not exceed [number of option shares] shares of Preferred Stock in
the aggregate), properly endorsed or accompanied, if required by the Depositary,
by a duly executed instrument of transfer or endorsement, in form satisfactory
to the Depositary. Concurrently with each delivery of certificates, the Company
is delivering or shall deliver, as the case may be, to the Depositary (i) all
such certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement and (ii) a written order of the Company
directing the Depositary to execute and deliver to, or upon the written or oral
order of, the person or persons stated in such order a Receipt or Receipts for
the Depositary Shares representing such deposited Preferred Stock. The
Depositary acknowledges receipt of the deposited Preferred Stock delivered on
the date of this Deposit Agreement and shall be deemed to acknowledge receipt of
any deposited Preferred Stock delivered after the date of this Deposit Agreement
in connection with any exercise of such over-allotment option, together in each
case with all related documentation, and agrees to hold such deposited Preferred
Stock in an account to be established by the Depositary at the Corporate Office
or at such other office as the
4
<PAGE>
Depositary shall determine. The Company hereby appoints [the Depositary] as the
Registrar, Transfer Agent and paying agent for the Preferred Stock in [City,
State of Corporate Office] and the Borough of Manhattan, The City of New York,
and the Depositary hereby accepts such appointment and, as such, will reflect
changes in the number of shares (including any fractional shares) of deposited
Preferred Stock held by it or any Depositary's Agent by notation, book-entry or
other appropriate method.
If required by the Depositary, Preferred Stock presented for deposit by the
Company at any time, whether or not the register of stockholders of the Company
is closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, that will provide for the prompt
transfer to the Depositary or its nominee of any dividend or right to subscribe
for additional Preferred Stock or to receive other property that any person in
whose name the Preferred Stock is or has been registered may thereafter receive
upon or in respect of such deposited Preferred Stock or in lieu thereof such
agreement of indemnity or other agreements as shall be satisfactory to the
Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock deposited hereunder, together with the other documents specified
above, and upon registering such Preferred Stock in the name of the Depositary,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver to, or upon the order of, the person or persons named
in the order delivered to the Depositary referred to in the first paragraph of
this Section 2.2, a Receipt or Receipts for the number of whole Depositary
Shares representing the Preferred Stock so deposited and registered in such name
or names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the New York Office or, if
requested by the person requesting such delivery, at the Corporate Office,
except that, at the request, risk and expense of any person requesting such
delivery, such delivery may be made at such other place as may be designated by
such person.
Other than in the case of splits, combinations or other reclassifications
affecting the Preferred Stock, or in the case of dividends or other
distributions of Preferred Stock, if any, there shall be deposited hereunder not
more than the number of shares constituting the Preferred Stock as set forth in
the Certificate of Designation, as such may be amended from time to time.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
Section 2.3 Optional Redemption of Preferred Stock for Cash[; Repurchase
------------------------------------------------------------
at Option of Holders]. Whenever the Company shall elect to redeem deposited
- --------------------
shares of Preferred Stock for cash in accordance with the provisions of the
Certificate of Designation, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary not less than 60 days' prior written notice
of the date of such proposed redemption and of the number of such shares of
Preferred Stock held by the Depositary to be redeemed and the applicable
redemption price, as set forth in the Certificate of Designation, including the
amount, if any, of accrued and unpaid dividends (including, without limitation,
accumulated dividends, if any, for prior dividend periods) to the date of such
redemption. The Depositary shall mail, first-class postage prepaid, notice
furnished by the Company of the redemption of the Preferred Stock and the
proposed
5
<PAGE>
simultaneous redemption of the Depositary Shares representing the Preferred
Stock to be redeemed, not less than 30 and not more than 60 days prior to the
date fixed for redemption of such Preferred Stock and Depositary Shares (the
"cash redemption date"), to the holders of record at the close of business on
--------------------
the record date fixed for such notice pursuant to Section 4.4 hereof of the
Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of
such holders as the same appear on the records of the Depositary, but neither
failure to mail any such notice to one or more such holders nor any defect in
any such notice shall affect the validity of the proceedings for redemption
except as to any holder to whom notice was defective or not given. The Company
shall provide the Depositary with such notice, and each such notice shall state:
(i) the cash redemption date; (ii) the cash redemption price; (iii) the number
of shares of deposited Preferred Stock and Depositary Shares to be redeemed;
(iv) the place or places (which shall [include/be in] the Borough of Manhattan,
The City of New York) where Receipts evidencing Depositary Shares to be redeemed
are to be surrendered for payment of the cash redemption price; (v) that
dividends on the shares of Preferred Stock represented by the Depositary Shares
to be redeemed will cease to accrue from and after such cash redemption date,
and (vi) if fewer than all the Depositary Shares evidenced by Receipts held by
any holder are to be redeemed, the number of such Depositary Shares held by such
holder to be so redeemed. If fewer than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed shall be selected pro
rata (as nearly as may be practicable without creating fractional Depositary
Shares) or by lot or by any other equitable method determined by the Company.
The Company shall also cause notice of redemption to be published in the Wall
Street Journal or, if such newspaper is not then being published, any other
daily newspaper of general circulation in The City of New York at least once a
week for two successive weeks commencing not less than 30 nor more than 60 days
prior to the cash redemption date.
In the event that notice of redemption has been made as described in the
immediately preceding paragraph and the Company shall then have paid in full to
the Depositary the cash redemption price (determined pursuant to the Certificate
of Designation) of the Preferred Stock deposited with the Depositary to be
redeemed (including any accrued and unpaid dividends (including, without
limitation, accumulated dividends, if any, for prior dividend periods) to the
date of redemption), the Depositary shall redeem, as of the same redemption date
as the Preferred Stock being so redeemed, the number of Depositary Shares
representing such Preferred Stock so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed to
redeem the shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph and to pay all amounts
due upon such redemption) all dividends in respect of the shares of Preferred
Stock called for redemption shall cease to accrue, the Depositary Shares called
for redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the cash redemption price together with accrued and unpaid dividends
thereon [(including, without limitation, accumulated dividends, if any, for
prior dividend periods)], and any money or other property to which holders of
such Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares representing such
Preferred Stock so called for redemption (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed at a cash redemption price per Depositary Share of $[ ], plus [ ]th
of the accrued and unpaid dividends (including, without limitation, accumulated
dividends, if any, for prior
6
<PAGE>
dividend periods), if any, payable on one share of Preferred Stock upon such
redemption, plus [ ]th of any other money and other property payable in respect
of one such share of Preferred Stock upon such redemption. The foregoing shall
be further subject to the terms and conditions of the Certificate of
Designation.
[Anything herein to the contrary notwithstanding, the holders of record of
Receipts evidencing Depositary Shares representing Preferred Stock at the close
of business on a record date for the payment of dividends on the Preferred Stock
will be entitled to receive the dividend payable with respect to the Preferred
Stock represented by the Depositary Shares evidenced by such Receipts on the
corresponding dividend payment date for the Preferred Stock notwithstanding the
redemption of such Preferred Stock or Depositary Shares after such record date
and on or prior to such dividend payment date or the Company's default in the
payment of the dividend due on such dividend payment date, in which case the
amount payable upon redemption of such Depositary Shares will not include any
amount in respect of such dividend (and the full amount of the dividend payable
for the applicable dividend period shall instead be paid on such dividend
payment date to the holders of record of such Receipts on such record date as
aforesaid).]
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
[If applicable, insert provisions relating to repurchase of Receipts at the
option of holders.]
Section 2.4 Registration of Transfer of Receipts. The Company hereby
------------------------------------
appoints the Depositary as the Registrar, Transfer Agent and paying agent for
the Receipts in [City, State of Corporate Office] and the Borough of Manhattan,
The City of New York and the Depositary hereby accepts such appointment and, as
such, shall register on its books from time to time transfers of Receipts upon
any surrender thereof by the holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement. No service charge will be made for any registration of transfer
or exchange of Receipts, but the Company or the Depositary may require payment
of any transfer tax or similar governmental charge payable in connection
therewith. Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered.
Section 2.5 Combinations and Split-ups of Receipts. Upon surrender of a
--------------------------------------
Receipt or Receipts at the Corporate Office, the New York Office or such other
office as the Depositary may designate for the purpose of effecting a split-up
or combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
7
<PAGE>
Section 2.6 Surrender of Receipts and Withdrawal of Preferred Stock. Any
-------------------------------------------------------
holder of a Receipt or Receipts evidencing Depositary Shares representing
deposited Preferred Stock may withdraw any or all of the deposited Preferred
Stock represented by the Depositary Shares evidenced by such Receipt or Receipts
and all money and other property, if any, represented by such Depositary Shares
by surrendering such Receipt or Receipts at the Corporate Office, the New York
Office or at such other office as the Depositary may designate for such
withdrawals, provided that a holder of a Receipt or Receipts may not withdraw
such Preferred Stock (or money and other property, if any, represented thereby)
which has previously been called for redemption. After such surrender, without
unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as hereinafter provided, the number
of whole or fractional shares of such Preferred Stock and all such money and
other property, if any, represented by the Depositary Shares evidenced by the
Receipt or Receipts so surrendered for withdrawal, but, except as provided below
in this Section 2.6, holders of such whole or fractional shares of Preferred
Stock will not thereafter be entitled to deposit such Preferred Stock hereunder
or to receive Depositary Shares therefor. If the Receipt or Receipts delivered
by the holder to the Depositary in connection with such withdrawal shall
evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole or fractional shares of deposited
Preferred Stock to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole or fractional shares of Preferred Stock and
such money and other property, if any, to be withdrawn, deliver to such holder
or (subject to Section 2.4) upon his order, a new Receipt or Receipts evidencing
such excess number of Depositary Shares. Delivery of such Preferred Stock and
such money and other property being withdrawn may be made by the delivery of
such certificates, documents of title and other instruments as the Depositary
may deem appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Stock and the money
and other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the New York Office or, if requested by
the holder surrendering such Receipt or Receipts, at the Corporate Office,
except that, at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such delivery may
be made at such other place as may be designated by such holder.
Section 2.7 Limitations on Execution and Delivery, Transfer, Split-up,
----------------------------------------------------------
Combination, Surrender and Exchange of Receipts. As a condition precedent to
- -----------------------------------------------
the execution and delivery, transfer, split-up, combination, surrender or
exchange of any Receipt[ or conversion [or exchange] right referred to in
Section 2.10,], the Depositary, any of the Depositary's Agents or the Company
may require any or all of the following: (i) payment to it of a sum sufficient
for the payment (or, in the event that the Depositary or the Company shall have
made such payment, the
8
<PAGE>
reimbursement to it) of any transfer tax or similar governmental charge payable
with respect thereto (including any such tax or charge with respect to the
Preferred Stock being deposited or withdrawn[; provided, however, that, the
Company shall pay any documentary, stamp or similar issue or transfer tax or
other similar governmental charge due on the issuance of the Common Stock or
other securities upon such conversion [or exchange]; and provided, further that
the holder of such Receipt shall pay the amount of any tax or other governmental
charge resulting from the issuance of Common Stock (as defined in Section 2.10)
or such other securities in a name other than that of such holder)]; (ii)
production of proof satisfactory to it as to the identity and genuineness of any
signature (or the authority of any signature); and (iii) compliance with such
reasonable regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement or as may be required
by any securities exchange upon which the deposited Preferred Stock, the
Depositary Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Stock may be refused, the delivery of Receipts
against Preferred Stock may be suspended, the transfer of Receipts may be
refused, and the transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be suspended [and the exercise of any conversion [or
exchange] right referred to in Section 2.10 may be suspended,] (i) during any
period when the register of stockholders of the Company is closed or (ii) if any
such action is deemed reasonably necessary or advisable by the Depositary, any
of the Depositary's Agents or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement.
Section 2.8 Lost Receipts, etc. In case any Receipt shall be mutilated or
-------------------
destroyed or lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, provided that the holder thereof provides the Depositary with
(i) evidence reasonably satisfactory to the Depositary of such destruction, loss
or theft of such Receipt, of the authenticity thereof and of his ownership
thereof and (ii) reasonable indemnification satisfactory to the Depositary and
the Company.
Section 2.9 Cancellation and Destruction of Surrendered Receipts. All
----------------------------------------------------
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
Section 2.10 Conversion [or Exchange] of Preferred Stock into Common
-------------------------------------------------------
Stock [or Other Securities] [to be revised according to conversion/exchange
- ---------------------------------------------------------------------------
rights]. It is understood and agreed that the Depositary Shares are not
- -------
convertible into [or exchangeable for ]Common Stock, $.01 par value per share
("Common Stock"), of the Company or any other securities or property of the
------------
Company. Nevertheless, as a matter of convenience, the Company hereby agrees to
cause the Depositary to accept (or to cause the Company's conversion agent [or
exchange agent, as the case may be,] to accept) the delivery of Receipts for the
purpose of effecting conversions [or exchanges] of the Preferred Stock utilizing
the same procedures as those provided for delivery of Preferred Stock
certificates to effect such conversions [or exchanges] in accordance with the
9
<PAGE>
terms and conditions of the Certificate of Designations; provided, however, that
only whole Depositary Shares may be so submitted for conversion[ or exchange].
Receipts may be surrendered with written instructions to the Depositary to
instruct the Company to cause the conversion [or exchange] of any specified
number of whole [or fractional] shares of Preferred Stock that is represented by
the Depositary Shares evidenced by such Receipts into the number of whole shares
of Common Stock [or whole number of other securities of the Company] obtained by
dividing the aggregate liquidation preference of the total number of shares of
Preferred Stock represented by such Depositary Shares by the Conversion Price
(as such term is defined in the Certificate of Designations) [or Exchange Ratio
(as defined in the Certificate of Designations) then in effect], as such
Conversion Price [or Exchange Ratio] may be adjusted by the Company from time to
time as provided in the Certificate of Designations. Subject to the terms and
conditions of this Deposit Agreement and the Certificate of Designations, a
holder of a Receipt or Receipts evidencing Depositary Shares representing whole
or fractional shares of Preferred Stock may surrender such Receipt or Receipts
to the Depositary at the Corporate Office or to such office or to such
Depositary's Agents as the Depositary may designate for such purpose, together
with (i) a notice of conversion [or exchange] thereof, as the case may be, duly
completed and executed (a "Notice of Conversion[/Exchange]"), and (ii) any
-------------------------------
payment in respect of dividends required by the fifth paragraph of this Section
2.10, thereby directing the Depositary to instruct the Company to cause the
conversion [or exchange, as the case may be,] of the number of shares or
fractions thereof of underlying Preferred Stock specified in such Notice of
Conversion[/Exchange] into whole shares of Common Stock or a whole number of
other securities of the Company. In the event that a holder delivers to the
Depositary for conversion [or exchange] a Receipt or Receipts which in the
aggregate are convertible into[ or exchangeable for] less than (i) one whole
share of Common Stock or any number of whole shares of Common Stock plus an
excess constituting less than one whole share of Common Stock or (ii) one of
such securities or any whole number of such securities plus an excess
constituting less than one security, the holder shall receive payment in lieu of
such fractional shares of Common Stock or fractional number of such securities
otherwise issuable in accordance with the last paragraph of this Section 2.10.
If more than one Receipt shall be delivered for conversion[ or exchange, as the
case may be,] at one time by the same holder, the number of whole shares of
Common Stock or the whole number of such securities issuable upon conversion [or
exchange] thereof[, as the case may be,] shall be computed on the basis of the
aggregate number of Depositary Shares evidenced by the Receipts so delivered.
Upon receipt by the Depositary of one or more Receipts, together with a
duly completed and executed Notice of Conversion[/Exchange], the Depositary
shall, on the date of receipt of such Notice of Conversion[/Exchange], instruct
the Company (i) to cause the conversion [or exchange, as the case may be,] of
the Depositary Shares evidenced by the Receipts so surrendered for conversion
[or exchange] as specified in the Notice of Conversion[/Exchange] and (ii) to
cause the delivery to the holder or holders of such Receipts of a certificate or
certificates evidencing the number of whole shares of Common Stock or the whole
number of such securities and the amount of money, if any, to be delivered to
the holders of Receipts surrendered for conversion[ or exchange] in payment of
any fractional shares of Common Stock or of any fractional number of such
securities otherwise issuable, as the case may be. The Company shall, as
promptly as practicable after receipt thereof, cause the delivery to such holder
or holders of (i) a certificate or certificates evidencing the number of whole
shares of Common
10
<PAGE>
Stock or the whole number of such securities into or for which the Preferred
Stock represented by the Depositary Shares evidenced by such Receipt or Receipts
has been converted [or exchanged, as the case may be, ]and (ii) any money or
other property to which the holder or holders are entitled. The person or
persons in whose name or names any certificate or certificates for shares of
Common Stock or for such securities shall be issuable upon such conversion [or
exchange, as the case may be, ]shall be deemed to have become the holder or
holders of record of the shares or securities represented thereby at the close
of business on the date such Receipt or Receipts shall have been surrendered to
and a Notice of Conversion[/Exchange] received by the Depositary, unless the
transfer books of the Company shall be closed on that date, in which event such
person or persons shall be deemed to have become such holder or holders of
record on the next succeeding day on which such transfer books are open. Upon
such conversion [or exchange,] the Depositary (i) shall deliver to the holder a
Receipt evidencing the number of Depositary Shares, if any, which such holder
has elected not to convert[ or exchange] in excess of the number of Depositary
Shares representing Preferred Stock which has been so converted [or exchanged,
as the case may be, ](ii) shall cancel the Depositary Shares evidenced by
Receipts surrendered for conversion [or exchange, as the case may be, ]and (iii)
shall deliver for cancellation to the transfer agent for the Preferred Stock the
shares of Preferred Stock represented by the Depositary Shares evidenced by the
Receipts so surrendered and so converted[ or exchanged, as the case may be].
If any Preferred Stock convertible into [or exchangeable for] Common Stock
or other securities of the Company shall be called by the Company for
redemption, the Depositary Shares representing such Preferred Stock may be
converted into[ or exchangeable for] Common Stock or such securities as provided
in this Deposit Agreement until and including, but not after, the close of
business on the cash redemption date (as defined in Section 2.3) unless the
Company shall default in making payment of the redemption price. Upon receipt
by the Depositary of a Receipt or Receipts representing any Preferred Stock
called for redemption, together with a properly completed and executed Notice of
Conversion[/Exchange], the shares of Preferred Stock held by the Depositary
represented by such Depositary Shares as to which conversion[ or exchange, as
the case may be,] is requested shall be deemed to have been received by the
Company for such conversion[ or exchange].
Upon any conversion[ or exchange, as the case may be,] of the Preferred
Stock underlying the Depositary Shares, no allowance, adjustment or payment
shall be made with respect to accrued dividends upon such Preferred Stock,
except that if any holder of a Receipt surrenders such Receipt with instructions
to the Depositary for conversion[ or exchange] of the underlying Preferred Stock
evidenced thereby during the period between the opening of business on any
dividend record date and the close of business on the corresponding dividend
payment date (except shares called for redemption on a redemption date during
such period), such Receipt must be accompanied by a payment equal to the
dividend thereon, if any, which the holder of such Receipt is entitled to
receive on such dividend payment date in respect of the underlying Preferred
Stock to be converted[ or exchanged].
Upon the conversion[ or exchange] of any shares of Preferred Stock for
which a duly completed and executed Notice of Conversion[/Exchange] has been
received by the Depositary, all dividends in respect of such Depositary Shares
shall cease to accrue, such Depositary Shares shall be deemed no longer
outstanding, all rights of the holder of the Receipt with respect to such
11
<PAGE>
Depositary Shares (except the right to receive the Common Stock or other
securities of the Company, any cash payable with respect to any fractional
shares of Common Stock or fractional number of such securities, as the case may
be, as provided herein and any cash payable on account of accrued dividends in
respect of the Preferred Stock so converted[ or exchanged] and any Receipts
evidencing Depositary Shares not so converted[ or exchanged]) shall terminate,
and the Receipt evidencing such Depositary Shares shall be cancelled in
accordance with Section 2.9 hereof.
No fractional shares of Common Stock or fractional number of securities, as
the case may be, shall be issuable upon conversion[ or exchange] of Preferred
Stock underlying the Depositary Shares. If, except for the provisions of this
Section 2.10 and the Certificate of Designations, any holder of Receipts
surrendered to the Depositary for conversion[ or exchange] of the underlying
Preferred Stock would be entitled to a fractional share of Common Stock or a
fractional number of securities, as the case may be, upon such conversion[ or
exchange], the Company shall cause to be delivered to such holder an amount in
cash for such fractional share or security determined in accordance with the
Certificate of Designations.
[Notwithstanding the foregoing, if less than all of the Depositary Shares
are to be exchanged, the Depositary Shares to be exchanged will be selected by
the Depositary by lot or pro rata or other equitable method, in each case as may
be determined by the Company. If the Depositary Shares evidenced by a
Depositary Receipt are to be exchanged in part only, a new Depositary Receipt or
Receipts will be issued for any Depositary Shares not to be exchanged.]
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1 Filing Proofs, Certificates and Other Information. Any person
-------------------------------------------------
presenting Preferred Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence or other information,
to execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
transfer, redemption or exchange of any Receipt, the withdrawal of the deposited
Preferred Stock represented by the Depositary Shares evidenced by any Receipt,
the distribution of any dividend or other distribution or the sale of any rights
or of the proceeds thereof, [the exercise of any conversion or exchange right
referred to in Section 2.10 or the delivery of Common Stock or other securities
of the Company upon such conversion or exchange] until such proof or other
information is filed, such certificates are executed or such representations and
warranties are made.
Section 3.2 Payment of Fees and Expenses. Holders of Receipts shall be
----------------------------
obligated to make payments to the Depositary of certain fees and expenses, as
provided in Section 5.7, or to provide evidence reasonably satisfactory to the
Depositary that such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Stock or money
or other property, if any, represented by the
12
<PAGE>
Depositary Shares evidenced by such Receipt may be refused, any dividend or
other distribution on such Preferred Stock may be withheld, and any part or all
of the Preferred Stock or other property represented by the Depositary Shares
evidenced by such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder a reasonable number
of days prior to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the holder of such Receipt remaining liable for any deficiency.
Section 3.3 Representations and Warranties as to Preferred Stock. In the
----------------------------------------------------
case of the initial deposit of the Preferred Stock hereunder, the Company and,
in the case of subsequent deposits thereof, each person so depositing Preferred
Stock under this Deposit Agreement shall be deemed thereby to represent and
warrant that such Preferred Stock and each certificate therefor are valid and
that the person making such deposit is duly authorized to do so. The Company
hereby further represents and warrants that such Preferred Stock, when issued,
will be validly issued, fully paid and nonassessable. Such representations and
warranties shall survive the deposit of the Preferred Stock and the issuance of
Receipts.
Section 3.4 Representation and Warranty as to Receipts and Depositary
---------------------------------------------------------
Shares. The Company hereby represents and warrants that the Receipts, when
issued, will evidence legal and valid interests in the Depositary Shares and
each Depositary Share will represent a legal and valid [ ]th fractional interest
in a deposited share of Preferred Stock. Such representation and warranty shall
survive the deposit of the Preferred Stock and the issuance of Receipts.
Section 3.5 [Covenants and Representation and Warranty as to Common Stock.
--------------------------------------------------------------
In the event that the Depositary Shares evidence Preferred Stock convertible
into[ or exchangeable for] Common Stock, the Company covenants that it will give
written notice to the Depositary of any adjustments in the Conversion Price [or
Exchange Ratio] made pursuant to the Certificate of Designation. The Company
hereby represents and warrants that the Common Stock issuable upon conversion or
exchange of the Preferred Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the conversion or exchange of the Preferred Stock into such Common
Stock. [to be modified if convertible into or exchangeable for other securities
of the Company]
ARTICLE IV
THE PREFERRED STOCK; NOTICES
Section 4.1 Cash Distributions. Whenever the Depositary shall receive
------------------
any cash dividend or other cash distribution on the deposited Preferred Stock,
the Depositary shall, subject to Section 3.2 and the last sentence of this
Section 4.1, distribute to record holders of Receipts evidencing Depositary
Shares representing deposited Preferred Stock on the record date fixed pursuant
to Section 4.4 such amounts of such sums as are, as nearly as practicable, in
proportion to the respective numbers of such Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required by law to withhold and shall withhold from any
cash dividend or other cash distribution in respect of the Preferred Stock
represented by the Depositary Shares which are evidenced by the Receipts held by
any holder an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares evidenced by such
Receipts shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may
13
<PAGE>
be, only such amount, however, as can be distributed without attributing to any
holder of Receipts a fraction of one cent, and any balance not so distributable
shall be held by the Depositary (without liability for interest thereon) and
shall be added to and be treated as part of the next sum received by the
Depositary for distribution to record holders of Receipts evidencing Depositary
Shares representing Preferred Stock then outstanding. Notwithstanding the
foregoing, if less than all of the outstanding Depositary Shares are to be
redeemed as contemplated by Section 2.3 hereof and the Depositary Shares to be
so redeemed are not selected pro rata, then only the holders of the Receipts
evidencing the Depositary Shares selected for redemption will be entitled to
receive the cash redemption price therefor or any other amounts payable upon
such redemption.
Section 4.2 Distributions Other Than Cash. Whenever the Depositary shall
-----------------------------
receive any distribution other than cash on the deposited Preferred Stock, the
Depositary shall, subject to Section 3.2 and the last sentence of Section 4.1,
distribute to record holders of Receipts evidencing Depositary Shares
representing deposited Preferred Stock on the record date fixed pursuant to
Section 4.4 such amounts of the securities or property received by the
Depositary in respect of the deposited Preferred Stock as are, as nearly as
practicable, in proportion to the respective numbers of such Depositary Shares
evidenced by the Receipts held by such holders in any manner that the Depositary
and the Company may deem equitable and practicable for accomplishing such
distribution. If, in the opinion of the Depositary after consultation with the
Company, such distribution cannot be made proportionately among such record
holders of Receipts evidencing Depositary Shares representing Preferred Stock or
if for any other reason (including any requirement that the Company or the
Depositary withhold an amount on account of taxes) the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.2, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of the applicable Receipts as provided
by Section 4.1 in the case of a distribution received in cash. The Company
shall not make any distribution of such securities or property unless the
Company shall have provided to the Depositary an opinion of counsel stating that
such securities or property have been registered under the Securities Act or do
not need to be registered.
Section 4.3 Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Company shall at any time offer or cause to be offered to the persons in whose
names deposited Preferred Stock is registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary, subject to the last sentence of Section 4.1, to the record holders
of Receipts evidencing Depositary Shares representing such Preferred Stock in
such manner as the Company shall instruct (including by the issue to such record
holders of warrants representing such rights, preferences or privileges);
provided, however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines upon advice of its legal
counsel that it is not lawful or feasible to make such rights, preferences or
privileges available to the holders of Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders
14
<PAGE>
of Receipts who do not desire to exercise such rights, preferences or
privileges, the Depositary shall then, if so instructed by the Company, and if
applicable laws or the terms of such rights, preferences or privileges so
permit, sell such rights, preferences or privileges of such holders at public or
private sale, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.2, be distributed
by the Depositary to the record holders of Receipts entitled thereto as provided
by Section 4.1 in the case of a distribution received in cash. The Company shall
not make any distribution of such rights, preferences or privileges unless the
Company shall have provided to the Depositary an opinion of counsel stating that
such rights, preferences or privileges have been registered under the Securities
Act or do not need to be registered.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees that it will promptly file a
registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective as promptly as practicable and, in any event, sufficiently in advance
of the expiration of such rights, preferences or privileges to enable such
persons to exercise such rights, preferences or privileges. In no event shall
the Depositary make available to the holders of Receipts any right, preference
or privilege to subscribe for or to purchase any securities unless and until
such a registration statement shall have become effective and the Company shall
have provided to the Depositary an opinion of legal counsel to such effect or
unless the offering and sale of such securities to such persons are exempt from
registration under the provisions of the Securities Act and the Company shall
have provided to the Depositary an opinion of counsel to such effect.
If any other action under the law of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges or related securities or any securities or
property referred to in Section 4.2 to be made available to holders of Receipts,
the Company agrees to take such action or obtain such authorization, consent or
permit prior to the distribution of such rights, preferences or privileges or
such securities or property referred to in Section 4.2, as the case may be, and
further agrees, in the case of any such related securities, to use its best
efforts to take such action or obtain such authorization, consent or permit as
promptly as practicable and, in any event, sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
Section 4.4 Notice of Dividends; Fixing of Record Date for Holders of
---------------------------------------------------------
Receipts. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered with respect to the
deposited Preferred Stock, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Stock are entitled to vote or
of which holders of such Preferred Stock are entitled to notice or (ii) any
election on the part of the Company to redeem any such shares of Preferred
Stock, the Depositary shall in each such instance fix a record date (which shall
be the same date as the record date fixed by the Company with respect to the
Preferred Stock, as the case may be) for the determination of the holders of
Receipts who shall be entitled (x) to receive such dividend, distribution,
rights, preferences or privileges or the
15
<PAGE>
net proceeds of the sale thereof, or (y) to give instructions for the exercise
of voting rights at any such meeting or to receive notice of such meeting or
redemption.
Section 4.5 Voting Rights. Upon receipt of notice of any meeting at which
-------------
the holders of deposited Preferred Stock are entitled to vote, the Depositary,
as soon as practicable thereafter, shall mail to the record holders of Receipts
a notice, which shall be provided by the Company and which shall contain (i)
such information as is contained in such notice of meeting, (ii) a statement
that the holders of Receipts at the close of business on a specified record date
fixed pursuant to Section 4.4 will be entitled, subject to any applicable
provision of law, to instruct the Depositary as to the exercise of the voting
rights pertaining to the Preferred Stock, represented by their respective
Depositary Shares and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a Receipt on
such record date (which shall be the same as the record date for the Preferred
Stock), the Depositary shall vote or cause to be voted the Preferred Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. Each share of Preferred Stock
is entitled to [ ] votes and, accordingly, each Depositary Share is entitled to
one vote. The Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the Depositary to vote
such Preferred Stock or cause such Preferred Stock to be voted. In the absence
of specific instructions from the holder of a Receipt, the Depositary will
abstain from voting to the extent of the Preferred Stock represented by the
Depositary Shares evidenced by such Receipt. The Depositary shall not be
required to exercise discretion in voting any Preferred Stock represented by the
Depositary Shares evidenced by such Receipt.
Section 4.6 Changes Affecting Preferred Stock and Reclassifications,
--------------------------------------------------------
Recapitalization, etc. Upon any change in the liquidation preference, or upon
- ----------------------
any split-up, combination or any other reclassification of Preferred Stock, or
upon any recapitalization, reorganization, merger or consolidation affecting the
Company or to which it is a party or sale of all or substantially all of the
Company's assets, the Depositary shall, upon the instructions of the Company,
(i) make such adjustments in the fraction of an interest represented by one
Depositary Share in one share of Preferred Stock, purchase price per Depositary
Share to the redemption price or purchase price, as the case may be, of a share
of Preferred Stock, in each case as may be required to fully reflect the effects
of such change in liquidation preference, split-up, combination or other
reclassification of Preferred Stock, or of such recapitalization,
reorganization, merger, consolidation or sale and (ii) treat any shares of stock
or other securities or property (including cash) that shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Preferred
Stock as new deposited property under this Deposit Agreement, and Receipts then
outstanding shall thenceforth represent the proportionate interests of holders
thereof in the new deposited property so received in exchange for or upon
conversion or in respect of such Preferred Stock. In any such case the
Depositary may, in its discretion, with the approval of the Company, execute and
deliver additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited property. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in liquidation preference, split-up, combination or other
reclassification of the Preferred Stock or any such recapitalization,
reorganization, merger or consolidation or sale of all or substantially all the
assets of the Company, to surrender such Receipts to the Depositary with
instructions to convert, exchange or
16
<PAGE>
surrender the Preferred Stock represented thereby only into or for, as the case
may be, the kind and amount of shares of stock and other securities and property
and cash into which the deposited Preferred Stock evidenced by such Receipts
might have been converted or for which such Preferred Stock might have been
exchanged or surrendered immediately prior to the effective date of such
transaction. The Company shall cause effective provision to be made in the
charter or other governing instruments of the resulting, surviving or transferee
entity (if other than the Company) for protection of such rights as may be
applicable upon exchange of the deposited Preferred Stock for securities or
property or cash of the surviving entity in connection with the transactions set
forth above. The Company shall cause any such surviving entity (if other than
the Company) expressly to assume the obligations of the Company hereunder, by
written instrument or agreement executed and delivered on or prior to the
effective date of such transaction.
Section 4.7 Inspection of Reports. The Depositary shall make available
---------------------
for inspection by holders of Receipts at the Corporate Office, the New York
Office and at such other places as it may from time to time deem advisable
during normal business hours any reports and communications received from the
Company that are both received by the Depositary as the holder of deposited
Preferred Stock and made generally available to the holders of the Preferred
Stock. In addition, the Depositary shall transmit certain notices and reports to
the holders of Receipts as provided in Section 5.5.
Section 4.8 List of Holders of Receipts. Promptly upon request from time
---------------------------
to time by the Company, the Depositary shall furnish to the Company a list, as
of a recent date specified by the Company, of the names, addresses and holdings
of Depositary Shares of all persons in whose names Receipts are registered on
the books of the Depositary.
Section 4.9 Tax and Regulatory Compliance. The Depositary shall be
-----------------------------
responsible for (i) preparation and mailing of Internal Revenue Service Forms
1099 for all open and closed accounts, (ii) foreign tax withholding, (iii) back-
up withholding (or any withholding as may be required at the then applicable
rate) on dividends paid and other distributions made to eligible holders of
Receipts, (iv) mailing Internal Revenue Service Forms W-9 to new holders of
Receipts without a certified taxpayer identification number, (v) processing
certified Internal Revenue Service Forms W-9, (vi) preparation and filing of
state information returns and (vii) escheatment services.
Section 4.10 Withholding. Notwithstanding any other provision of this
-----------
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
17
<PAGE>
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1 Maintenance of Offices, Agencies and Transfer Books by the
----------------------------------------------------------
Depositary and the Registrar. The Depositary shall maintain (i) at the New York
- ----------------------------
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up, combination[, exchange] [, conversion] [, repurchase] and
redemption of Receipts (and payment of amounts due upon such redemption[ or
repurchase]) and for other payments and distributions in respect of the
Depositary Shares and the Receipts, and deposit and withdrawal of Preferred
Stock and (ii) at the Corporate Office and at the offices of the Depositary's
Agents, if any, facilities for the execution and delivery, transfer, surrender
and exchange, split-up, combination and redemption of Receipts (and payment of
amounts due upon such redemption) and for other payments and distributions in
respect of the Depositary Shares and the Receipts and deposit and withdrawal of
Preferred Stock, all in accordance with the provisions of this Deposit
Agreement. Without limitation to the foregoing provisions of this Section 5.1,
the Company shall at all times maintain a paying agent, Transfer Agent and
Registrar for the Receipts and the Preferred Stock in the Borough of Manhattan,
The City of New York.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times shall
be open for inspection by the record holders of Receipts. The Depositary may
close such books, at any time or from time to time, when deemed expedient by it
in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Preferred
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, Inc. or any other stock exchange, the Depositary shall, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of such Receipts or Depositary Shares in accordance with the
requirements of such exchange. Such Registrar (which may be the Depositary if
so permitted by the requirements of such exchange) may be removed and a
substitute Registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Stock are listed on one or more other stock exchanges, the Depositary
will, at the request and expense of the Company, arrange such facilities for the
delivery, transfer, surrender, redemption, purchase and exchange of such
Receipts, such Depositary Shares or such Preferred Stock as may be required by
law or applicable stock exchange regulations.
Section 5.2 Prevention or Delay in Performance by the Depositary, the
---------------------------------------------------------
Depositary's Agents, the Registrar or the Company. Neither the Depositary, any
- -------------------------------------------------
Depositary's Agent, any Registrar nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Depositary, any Depositary's
Agent or any Registrar, by reason of any provision, present or future, of the
Certificate of Incorporation (including the Certificate of Designation) or, in
the case of the Company, the Depositary, any Depositary's Agent or any
Registrar, by reason of any act of God or war or other circumstance beyond the
control of the relevant party, the Depositary, any Depositary's Agent, any
Registrar or the Company shall be prevented or forbidden from doing or
18
<PAGE>
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Receipt by
reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing that the terms of this Deposit Agreement provide shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement.
Section 5.3 Obligations of the Depositary, the Depositary's Agents, the
-----------------------------------------------------------
Registrar and the Company. Neither the Depositary, any Depositary's Agent, any
- -------------------------
Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than from acts or omissions arising out of conduct constituting bad faith,
gross negligence or willful misconduct in the performance of such duties as are
specifically set forth in this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Preferred Stock,
Depositary Shares or Receipts that in its reasonable opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be reasonably required.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information provided
by any person presenting Preferred Stock for deposit, any holder of a Receipt or
any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims, requests or
instructions from any holders of Receipts, on the one hand, and the Company, on
the other hand, the Depositary shall be entitled to act on such claims, requests
or instructions received from the Company and shall be entitled to the full
indemnification set forth in Section 5.6 hereof in connection with any action so
taken.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited Preferred Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from gross negligence or willful misconduct of
the Depositary. The Depositary undertakes, and any Registrar shall be required
to undertake, to perform such duties and only such duties as are specifically
set forth in this Deposit Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Depositary or any Registrar.
The Depositary, its parent, affiliates, or subsidiaries, any Depositary's
Agent, and any Registrar may own, buy, sell or deal in any class of securities
of the Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its affiliates
may be interested or contract with or lend money to or
19
<PAGE>
otherwise act as fully or as freely as if it were not the Depositary or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of the securities under the federal securities laws
or applicable state securities laws, it being expressly understood and agreed
that the Depositary and any Depositary's Agent are acting only in a ministerial
capacity as Depositary for the deposited Preferred Stock; provided, however,
that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement in
its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent makes any representation or has any responsibility as
to the validity of the registration statement pursuant to which the Depositary
Shares are registered under the Securities Act, the deposited Preferred Stock,
the Depositary Shares, the Receipts (except its signature or countersignature
thereon) or any instruments referred to herein or therein, or as to the
correctness of any statement made herein or therein; provided, however, that the
Depositary is responsible for its representations in this Deposit Agreement and
for the validity of any action taken or required to be taken by the Depositary
in connection with this Deposit Agreement.
The Company agrees that it will register the deposited Preferred Stock and
the Depositary Shares in accordance with the applicable securities laws.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
---------------------------------------------------------
Successor Depositary. The Depositary may at any time resign as Depositary
- --------------------
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder and pursuant to which it shall agree to become the
depositary under this Agreement, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and
20
<PAGE>
deliver all rights, title and interest in the deposited Preferred Stock and any
moneys or property held hereunder to such successor and shall deliver to such
successor a list of the record holders of all outstanding Receipts that may be
in the possession of the predecessor. Any successor depositary shall promptly
mail notice of its appointment to the record holders of Receipts whose names and
addresses have been furnished to such successor Depositary.
Any corporation, association or other entity into or with which the
Depositary may be merged, consolidated or converted shall be the successor of
such Depositary without the execution or filing of any document or any further
act. Such successor depositary may execute the Receipts either in the name of
the predecessor depositary or in the name of the successor depositary.
Section 5.5 Notices, Reports and Documents. The Company agrees that it
------------------------------
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Stock, the Depositary Shares or the
Receipts are included for quotation or listed or by the Certificate of
Incorporation, the Company's by-laws or the Certificate of Designation to be
furnished by the Company to holders of the deposited Preferred Stock and, if
requested by the holder of any Receipt, a copy of this Deposit Agreement, the
form of Receipt, the Certificate of Designation and the form of Preferred Stock
certificate. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit to
the record holders of Receipts at the Company's expense such other documents as
may be requested by the Company.
Section 5.6 Indemnification by the Company. The Company agrees to
------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable attorneys' fees) that may arise out of, or in connection with, its
acting as Depositary, Depositary's Agent or Registrar, respectively, under this
Deposit Agreement and the Receipts, except for any liability arising out of the
willful misconduct, gross negligence or bad faith on the part of any such person
or persons. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Registrar or Depositary's Agent or
termination of this Deposit Agreement.
Section 5.7 Fees, Charges and Expenses. No charges or expenses of the
--------------------------
Depositary or any Depositary's Agent hereunder shall be payable by any person,
except as provided in this Section 5.7. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of this
Deposit Agreement. The Company shall also pay all fees and expenses of the
Depositary in connection with the deposit of the Preferred Stock and the initial
issuance of the Depositary Shares evidenced by the Receipts, any redemption of
the Preferred Stock at the option of the Company, all withdrawals of the
Preferred Stock by holders of Depositary Shares, and in connection with all
other services provided, and all other duties performed, by the Depositary under
this Agreement. If a holder of Receipts requests the Depositary to perform
duties not required under this Deposit Agreement, the Depositary shall notify
the holder of the cost of the performance of such duties prior to the
performance thereof. Such holder will be liable for the charges and expenses
related to such performance. All other
21
<PAGE>
fees and expenses of the Depositary and any Depositary's Agent hereunder and of
any Registrar (including, in each case, fees and expenses of counsel) incident
to the performance of their respective obligations hereunder will be promptly
paid as agreed between the Depositary and the Company from time to time. The
amount of the fees and expenses of the Depositary, any Depositary's Agent and
any Registrar which are payable by the Company pursuant to this Section 5.7
shall be as agreed upon by the Company and the Depositary, such Depositary's
Agent or such Registrar, as the case may be, from time to time. The Depositary
shall present its statement for fees and expenses to the Company every month or
at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment. The Receipts and any provision of this Deposit
---------
Agreement (including any provision of the form of Receipt attached as Exhibit A
hereto) may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment which (i) shall materially
and adversely alter the rights of the holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Preferred Stock pursuant to the Certificate of Designation shall be
effective unless such amendment shall have been approved by the holders of
Receipts evidencing at least a majority of the Depositary Shares then
outstanding (or such greater proportion as may be required by the rules of any
securities exchange on which the Depositary Shares may be listed). In no event
shall any amendment impair the right, subject to the provisions of Section 2.6,
Section 2.7 and Article III hereof, of any holder of any Depositary Shares to
surrender the Receipt evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the deposited Preferred Stock, together with
all money and other property, if any, represented thereby, except in order to
comply with mandatory provisions of applicable law. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.
Section 6.2 Termination. This Deposit Agreement may be terminated by the
-----------
Company upon not less than 60 days' prior notice to the Depositary if the
holders of Receipts evidencing at least a majority of the outstanding Depositary
Shares consent to such termination, whereupon the Depositary shall deliver or
make available to each holder of a Receipt, upon surrender of the Receipt held
by such holder, such number of whole or fractional shares of deposited Preferred
Stock as are represented by the Depositary Shares evidenced by such Receipt,
together with any cash or other property held by the Depositary in respect of
such Receipt. This Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares shall have been redeemed pursuant to Section
2.3[,] [or] (ii) [all outstanding shares of Preferred Stock shall have been
converted into[or exchanged for] shares of Common Stock or other securities of
the Company pursuant to Section 2.10, as the case may be, or (iii)] there shall
have been made a final distribution in respect of the deposited Preferred Stock
in connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Receipts
entitled thereto.
22
<PAGE>
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.6 and Section 5.7.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed in any
------------
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement.
Section 7.2 Exclusive Benefits of Parties. This Deposit Agreement is for
-----------------------------
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.3 Invalidity of Provisions. In case any one or more of the
------------------------
provisions contained in this Deposit Agreement or in the Receipts shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Notices. Any and all notices to be given to the Company
-------
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, by overnight courier,
or by telegram or facsimile transmission confirmed by letter, addressed to the
Company at:
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Attention: Robert J. Flax
Telephone No.: (650) 573-7300
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the Receipts
shall be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail, by overnight courier, or by telegram or telex or
telecopier confirmed by letter, addressed to the Depositary at the Corporate
Office.
Any notices given to any record holder of a Receipt shall be in writing and
shall be deemed to have been duly given if personally delivered or sent by mail,
by overnight courier, or by telegram or telex or telecopier confirmed by letter,
addressed to such record holder at the address of such record holder as it
appears on the books of the Depositary at its address provided to the Depositary
by the Company or, if such holder shall have filed with the Depositary in a
23
<PAGE>
timely manner a written request that notices intended for such person be mailed
or delivered to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram
or telex or telecopier message received by it from the other or from any holder
of a Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
Section 7.5 Depositary's Agents. The Depositary may from time to time
-------------------
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action, except that
no such notice shall be required if the Depositary's Agent in question is [ ].
Section 7.6 Holders of Receipts Are Parties. The holders of Receipts
-------------------------------
from time to time shall be deemed to be parties to this Deposit Agreement and
shall be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
Section 7.7 Governing Law. This Deposit Agreement and the Receipts and
-------------
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the law of the State of New York
applicable to agreements made and to be performed in said State.
Section 7.8 Inspection of Deposit Agreement and Certificate of
--------------------------------------------------
Designation. Copies of this Deposit Agreement and the Certificate of Designation
- -----------
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Corporate Office, the New York Office
and the respective offices of the Depositary's Agents, if any, by any holder of
any Receipt.
Section 7.9 Headings. The headings of articles and sections in this
--------
Deposit Agreement (including Exhibit A hereto) and in the Receipts have been
inserted for convenience only and are not to be regarded as a part of this
Deposit Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
24
<PAGE>
IN WITNESS WHEREOF, Bay View Capital Corporation and [Name of Depositary]
have duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with the terms
hereof.
BAY VIEW CAPITAL CORPORATION
By: ___________________________________
Name:
Title:
[NAME OF DEPOSITARY]
By: ___________________________________
Name:
Title:
25
<PAGE>
EXHIBIT A
Form of Receipt
26
<PAGE>
[FORM OF FACE OF RECEIPT]
The Company (as defined herein) will furnish to any holder hereof who so
requests and any other stockholder who so requests, without charge, the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. The Company will
also furnish without charge to each holder hereof who so requests, without
charge, a copy of the Deposit Agreement (as defined below) and a copy of the
Certificate of Designation with respect to the Stock (as defined below) of the
Company. Any such request may be made to the Secretary of the Company at its
principal office or to the Depositary (as defined below).
DRC- This Depositary Receipt is transferable in
[City, State of Corporate Office] or New
York, New York.
See reverse for certain definitions.
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES CUSIP
EACH REPRESENTING [ ]th OF A SHARE OF
[ ]% SERIES [ ][CUMULATIVE][REDEEMABLE][CONVERTIBLE][EXCHANGEABLE] PREFERRED
STOCK
OF
BAY VIEW CAPITAL CORPORATION
(a Delaware corporation)
[Name of Depositary], as Depositary (the "Depositary", which term includes
any successor depositary under the Deposit Agreement referred to below), hereby
certifies that ____________________________________ is the registered owner of
____________ DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share
representing [ ]th of one share of [ ]% Series [ ][Cumulative][Redeemable]
[Convertible][Exchangeable] Preferred Stock, no par value per share (the
"Stock"), of Bay View Capital Corporation, a Delaware corporation (the
"Company", which term, as used herein, includes it successors), on deposit with
the Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of [ ] (as the same may be amended or supplemented from time
to time, the "Deposit Agreement") among the Company, the Depositary and the
holders from time to time of depositary receipts ("Receipts") issued thereunder.
By accepting this Receipt, the holder hereof becomes a party to and agrees to be
bound by all the terms and conditions of the Deposit Agreement. This Receipt
shall not be valid or obligatory for any purpose or entitled to any benefits
under the Deposit Agreement unless it shall have been executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary,
provided that, if a Registrar in respect of the Receipts (other than the
Depositary) shall have been appointed, then this Receipt may be signed by the
facsimile signature of a duly authorized signatory of the Depository so long as
it is countersigned by the manual signature of a duly authorized signatory of
such Registrar.
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth (including, without limitation, those relating to
redemption) for all purposes have the same effect as if set forth at this place.
Dated:
[NAME OF DEPOSITARY],
as Depositary, Transfer Agent and Registrar
By: ___________________________
Authorized Signatory
27
<PAGE>
[FORM OF REVERSE OF RECEIPT]
BAY VIEW CAPITAL CORPORATION
1. THE DEPOSIT AGREEMENT. Receipts, of which this Receipt is one, are
made available upon the terms and conditions set forth in the Deposit Agreement
(as defined on the face hereof). The Deposit Agreement (copies of which are on
file at the Corporate Office of the Depositary and at the office of any agent of
the Depositary) sets forth the rights of holders of Receipts and the rights and
duties of the Depositary. The statements made on the face and the reverse of
this Receipt are summaries of certain provisions of the Deposit Agreement and
are subject to the detailed provisions thereof, to which reference is hereby
made. In the event of any conflict between the provisions of this Receipt and
the provisions of the Deposit Agreement, the provisions of the Deposit Agreement
will govern.
2. DEFINITIONS. Unless otherwise expressly herein provided, all defined
terms used in this summary of the Deposit Agreement shall have the meanings
ascribed thereto in the Deposit Agreement.
3. REDEMPTION OF STOCK. Whenever the Company shall elect to redeem shares
of Stock, it shall (unless otherwise agreed in writing with the Depositary) give
the Depositary not less than 60 days' notice of the date of such proposed
redemption and of the number of such shares of Stock held by the Depositary to
be redeemed and the applicable redemption price. The Depositary shall mail,
first-class postage prepaid, notice furnished by the Company of the redemption
of Stock and the proposed simultaneous redemption of Depositary Shares
representing the Stock to be redeemed, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares,
to the holders of record at the close of business on the record date fixed for
such redemption pursuant to the Deposit Agreement of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as the
same appear on the records of the Depositary. Any such notice shall also be
published in the manner specified in the Deposit Agreement. On the date of such
redemption, the Depositary shall redeem the number of Depositary Shares
representing such Stock so called for redemption; provided, that the Company
shall then have paid in full to the Depositary the cash redemption price of the
Stock to be redeemed (including any accrued and unpaid dividends (including,
without limitation, accumulated dividends, if any, for prior dividend periods)
to the date of redemption). If fewer than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed shall be selected pro
rata or by lot or by any other equitable method determined by the Company.
Notice having been mailed as aforesaid, from and after the redemption date
(unless the Company shall have failed to redeem the shares of Stock to be
redeemed by it as set forth in the notice of redemption and to pay in full the
redemption price therefor (including accrued and unpaid dividends (including
accumulated dividends, if any, for prior dividend periods)), all dividends in
respect of the shares of Stock called for redemption shall cease to accrue, the
Depositary Shares called for redemption shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price together with accrued
and unpaid dividends, if any, thereon (including, without limitation,
accumulated dividends, if any, for prior dividend periods) and any money or
other property to which holders of such Receipts were entitled upon
1
<PAGE>
such redemption) shall, to the extent of such Depositary Shares, cease and
terminate. Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned for transfer,
if the Depositary shall so require), such Depositary Shares shall be redeemed at
a cash redemption price per Depositary Share of $[ ], plus [ ]th of the accrued
and unpaid dividends (including, without limitation, accumulated dividends, if
any, for prior dividend periods), if any, payable on one share of Stock upon
such redemption, plus [ ]th of any other money and other property payable in
respect of one such share of Stock upon such redemption. The foregoing is
subject to the further terms and conditions of the Certificate of Designation
and the Deposit Agreement. If fewer than all of the Depositary Shares evidenced
by this Receipt are called for redemption, the Depositary will deliver to the
holder of this Receipt upon its surrender to the Depositary, together with the
cash redemption price, a new Receipt evidencing the Depositary Shares evidenced
by such prior Receipt and not called for redemption.
[Add Conversion/Exchange provision, if applicable]
4. SURRENDER OF RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of this
Receipt to the Depositary at the Corporate Office or the New York Office or at
such other office as the Depositary may designate, and subject to the provisions
of the Deposit Agreement, the holder hereof is entitled to withdraw, and to
obtain delivery, without unreasonable delay, to or upon the order of such
holder, any or all of the Stock (in whole or fractional shares of Stock) and all
money and other property, if any, represented by the Depositary Shares evidenced
by this Receipt; provided, however, that, in the event this Receipt shall
evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole or fractional shares of deposited Stock
to be withdrawn, the Depositary shall at the same time, in addition to such
number of whole or fractional shares of Stock and such money and other property,
if any, to be withdrawn, deliver to or upon the order of such holder, a new
Receipt or Receipts evidencing such excess number of Depositary Shares.
5. TRANSFERS, SPLIT-UPS, COMBINATIONS. Subject to the Deposit Agreement,
this Receipt is transferable on the books of the Depositary upon surrender of
this Receipt by the holder hereof in person or by a duly authorized attorney to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, together with evidence of the payment of
any transfer taxes as may be required by law. Upon such surrender the
Depositary shall sign and deliver a Receipt or Receipts to or upon the order of
the person entitled thereto, all as provided in and subject to the Deposit
Agreement. Subject to the terms of the Deposit Agreement, this Receipt may be
split into other Receipts or combined with other Receipts into one Receipt
evidencing the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the Depositary shall
not issue any Receipt evidencing a fractional Depositary Share.
6. CONDITIONS TO SIGNING AND DELIVERY, TRANSFER, ETC. OF RECEIPTS. As a
condition precedent to the execution and delivery, transfer, split-up,
combination, surrender or exchange of this Receipt, the Depositary, any of the
Depositary's Agents or the Company may require any or all of the following: (i)
payment to it of a sum sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such payment, the reimbursement to it)
of any transfer tax or similar governmental charge with respect thereto
(including any such tax or charge with respect to the Stock being deposited or
withdrawn); (ii) production of proof
2
<PAGE>
satisfactory to it as to the identity and genuineness of any signature (or the
authority of any signature); and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of the Deposit Agreement or as may be required by any
securities exchange upon which the deposited Stock, the Depositary Shares or the
Receipts may be included for quotation or listed.
7. SUSPENSION OF DELIVERY, TRANSFER, ETC. The deposit of Stock may be
refused, the delivery of this Receipt against Stock may be suspended, the
transfer of Receipts may be refused, and the transfer, split-up, combination,
surrender or exchange of this Receipt may be suspended (i) during any period
when the register of stockholders of the Company is closed or (ii) if any such
action is deemed reasonably necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission,
or under any provision of the Deposit Agreement.
8. AMENDMENT. The Receipts and any provision of the Deposit Agreement
(including any provision of the form of Receipt attached as an exhibit thereto)
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment which (i) shall materially
and adversely alter the rights of holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Stock pursuant to the Certificate of Designation shall be effective unless
such amendment shall have been approved by the holders of at least two-thirds of
the Depositary Shares evidenced by Receipts then outstanding. The holder of
this Receipt at the time any such amendment becomes effective shall be deemed,
by continuing to hold this Receipt, to consent and agree to such amendment and
to be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, as provided in the Deposit Agreement, of the owner
of the Depositary Shares evidenced by this Receipt to surrender this Receipt
with instructions to the Depositary to deliver to the holder the deposited Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
9. CHARGES AND EXPENSES. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangement, except such charges as are expressly provided in the
Deposit Agreement to be at the expense of holders of Receipts.
10. TITLE TO RECEIPTS. Title to this Receipt (and to the Depositary
Shares evidenced hereby), when properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement, is transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that until this Receipt is transferred on the books of the Depositary as
provided in the Deposit Agreement, the Depositary may, notwithstanding any
notice to the contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
11. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the deposited Stock, the
Depositary shall, subject to the
3
<PAGE>
provisions of the Deposit Agreement, distribute to record holders of Receipts
evidencing Depositary Shares representing the deposited Stock on the record date
fixed pursuant to the Deposit Agreement such amounts of such sums as are, as
nearly as practicable, in proportion to the respective numbers of such
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required by law to
withhold and shall withhold from any cash dividend or other cash distribution in
respect of the Stock represented by the Depositary Shares which are evidenced by
the Receipts held by any holder an amount on account of taxes, the amount made
available for distribution or distributed in respect of Depositary Shares
evidenced by such Receipts shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any holder of
Receipts a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding. Notwithstanding the
foregoing, if less than all of the outstanding Depositary Shares are to be
redeemed and the Depositary Shares to be so redeemed are not selected pro rata,
then only the record holders of the Receipts evidencing the Depositary Shares
selected for redemption will be entitled to receive the cash redemption price
therefor or any other amounts payable upon such redemption.
12. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company shall
at any time offer or cause to be offered to the persons in whose names deposited
Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the record holders of Receipts
in such manner as the Company shall instruct (including by the issue to such
record holders of warrants representing such rights, preferences and
privileges).
13. NOTICE OF DISTRIBUTIONS, FIXING OF RECORD DATE. Whenever any cash
dividend or other cash distribution shall become payable, any distribution other
than cash shall be made, or any rights, preferences or privileges shall at any
time be offered with respect to the deposited Stock, or whenever the Depositary
shall receive notice of (i) any meeting at which holders of such Stock are
entitled to vote or of which holders of such Stock are entitled to notice or
(ii) any election on the part of the Company to redeem any such shares of Stock,
the Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Stock) for
the determination of the holders of Receipts who shall be entitled (x) to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) to give instructions for the exercise
of voting rights at any such meeting or to receive notice of such meeting or
whose Depositary Shares are to be so redeemed.
14. VOTING RIGHTS. Upon receipt of notice of any meeting at which the
holders of deposited Stock are entitled to vote, the Depositary, as soon as
practicable thereafter, shall mail to the record holders of Receipts a notice,
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified date fixed as
provided in the Deposit Agreement will be entitled, subject to any applicable
provisions of law, to instruct the
4
<PAGE>
Depositary as to the exercise of the voting rights pertaining to the Stock
represented by their respective Depositary Shares and (iii) a brief statement as
to the manner in which such instructions may be given. Upon the written request
of a holder of this Receipt on such record date, the Depositary shall vote or
cause to be voted the Stock represented by the Depositary Shares evidenced by
this Receipt in accordance with the instructions set forth in such request. The
Company hereby agrees to take all reasonable action that may be deemed necessary
by the Depositary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of specific instructions from the holder
of this Receipt, the Depositary will abstain from voting to the extent of the
Stock represented by the Depositary Shares evidenced by this Receipt. The
Depositary shall not be required to exercise discretion in voting the Stock
represented by the Depositary Shares evidenced by this Receipt.
15. REPORTS, INSPECTION OF TRANSFER BOOKS. The Depositary shall transmit
to the record holders of Receipts at the addresses recorded in the Depositary's
books copies of all notices and reports (including financial statements)
required by law, by the rules of any national securities exchange upon which the
Stock, the Depositary Shares or the Receipts are included for quotation or
listed or by the Articles of Incorporation, the Company's by-laws or the
Certificate of Designation to be furnished by the Company to holders of the
deposited Stock that are received by the Depositary from the Company. The
Depositary shall keep books at the Corporate Office and the New York Office for
the registration and transfer of Receipts, which books at all reasonable times
will be open for inspection by the record holders of Receipts.
16. LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
AND THE COMPANY. Neither the Depositary, any Depositary's Agent, any Registrar
nor the Company shall incur any liability to any holder of this Receipt, if by
reason of any provision of any present or future law or regulation thereunder of
the United States of America or of any other governmental authority or, in the
case of the Depositary, any Depositary's Agent or any Registrar, by reason of
any provision, present or future, of the Articles of Incorporation or the
Certificate of Designation or, in the case of the Company, the Depositary, any
Depositary's Agent or any Registrar, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary's Agent, any Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability to any
holder of this Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement.
17. OBLIGATIONS OF THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY.
Neither the Depositary, any Depositary's Agent, any Registrar nor the Company
assumes any obligation or shall be subject to any liability under the Deposit
Agreement or this Receipt to the holder hereof other than from acts or omissions
arising out of conduct constituting bad faith, gross negligence or willful
misconduct in the performance of such duties as are specifically set forth in
the Deposit Agreement.
5
<PAGE>
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Stock, Depositary
Shares or Receipts that in its reasonable opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be reasonably required.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information provided
by any person presenting Stock for deposit, any holder of this Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
18. TERMINATION OF DEPOSIT AGREEMENT. The Deposit Agreement may be
terminated by the Company upon not less than 60 days' prior notice to the
Depositary if the holders of Receipts evidencing a majority of the outstanding
Depositary Shares consent to such termination, whereupon the Depositary shall
deliver or make available to each holder of a Receipt, upon surrender of the
Receipt held by such holder, such number of whole or fractional shares of
deposited Stock as are represented by the Depositary Shares evidenced by such
Receipt, together with any cash or other property held by the Depositary in
respect of such Receipt. Upon the termination of the Deposit Agreement, the
Company shall be discharged of all obligations thereunder except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.6 and 5.7 of the Deposit Agreement.
19. GOVERNING LAW. The Deposit Agreement and this Receipt and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed by,
and construed in accordance with, the law of the State of New York applicable to
agreements made and to be performed in said State.
6
<PAGE>
The following abbreviations when used in the instructions on the face of
this Receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________________ Custodian _______________
(Cust) (Minor)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common ____________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
For value received, _______________________________________________________
hereby sell(s), assign(s) and transfers) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
Please Print Or Typewrite Name And Address Including Postal Zip Code Of Assignee
Depositary Shares represented by the within Receipt, and do(es) hereby
rrevocably constitute and appoint Attorney to transfer the said Depositary
Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated: ____________ Signed:_____________________________________
NOTICE: THE SIGNATURE TO THE ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THIS RECEIPT IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE
WHATEVER
Signature(s) Guaranteed:
___________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM, PURSUANT TO
S.E.C. RULE 17Ad-15.
7
<PAGE>
EXHIBIT 4(j)
CERTIFICATE OF TRUST OF BAY VIEW CAPITAL I
------------------------------------------
This Certificate of Trust of Bay View Capital I (the "Trust") is being duly
executed and filed by Wilmington Trust Company, a Delaware banking corporation,
not in its individual capacity but solely as trustee, and Robert J. Flax, not in
his individual capacity, but solely as trustee, to form a business trust under
the Delaware Business Trust Act (12 Del. C. (S)3801, et seq.) (the "Act").
------- -- ---
1. Name. The name of the business trust formed hereby is Bay View Capital
----
I.
2. Delaware Trustee. The name and business address of the trustee of the
----------------
Trust in the State of Delaware are Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attn:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
--------------
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Trust
pursuant to Section 3811(a)(1) of the Act.
Wilmington Trust Company, not in its individual
capacity but solely as trustee
By: /s/ Donald G. Mackelcan
-----------------------
Name: Donald G. Mackelcan
Title: Assistant Vice President
/s/ Robert J. Flax
------------------
Robert J. Flax, not in his individual
capacity, but solely as trustee
<PAGE>
EXHIBIT 4(k)
CERTIFICATE OF TRUST OF BAY VIEW CAPITAL II
-------------------------------------------
This Certificate of Trust of Bay View Capital II (the "Trust") is being
duly executed and filed by Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as trustee, and Robert J.
Flax, not in his individual capacity, but solely as trustee, to form a business
trust under the Delaware Business Trust Act (12 Del. C. (S)3801, et seq.) (the
------- -- ---
"Act").
1. Name. The name of the business trust formed hereby is Bay View Capital
----
II.
2. Delaware Trustee. The name and business address of the trustee of the
----------------
Trust in the State of Delaware are Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attn:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
--------------
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Trust
pursuant to Section 3811(a)(1) of the Act.
Wilmington Trust Company, not in its individual
capacity but solely as trustee
By: /s/ Donald G. Mackelcan
--------------------------------
Name: Donald G. Mackelcan
Title: Assistant Vice President
/s/ Robert J. Flax
-------------------------------------
Robert J. Flax, not in his individual
capacity, but solely as trustee
<PAGE>
EXHIBIT 4(l)
TRUST AGREEMENT
OF
BAY VIEW CAPITAL I
THIS TRUST AGREEMENT is made as of September 16, 1998 (this "Trust
Agreement"), by and among Bay View Capital Corporation, a Delaware corporation,
as Sponsor (the "Sponsor"), Wilmington Trust Company, a Delaware banking
corporation, as trustee ("Delaware Trustee"), and Robert J. Flax, as trustee
(the Delaware Trustee and Robert J. Flax being hereinafter jointly referred to
as the "Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Bay View Capital I" (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S)3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3, including any subsequent registration statements filed under Rule 462(b)
under the 1933 Act (as herein defined) (collectively, the "1933 Act Registration
Statement") referred to below, or in such other form as the Trustees and the
Sponsor may approve, to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement or Declaration, the Trustees shall not have
any duty or obligation hereunder or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Sponsor and the Trustees hereby authorize and direct the Sponsor,
as the sponsor of the Trust, (i) to file with the Securities and Exchange
Commission (the "Commission") and to execute, in the case of the 1933 Act
Registration Statement and 1934 Act Registration Statement (as herein defined),
on behalf of the Trust, (a) the 1933 Act Registration Statement, including pre-
effective or post-effective amendments to such Registration Statement, with
exhibits thereto, and any registration statements filed under
<PAGE>
Rule 462(b), relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Preferred Securities required to be filed pursuant to Rule 424 under the 1933
Act, and (c) a Registration Statement on Form 8-A or other appropriate form (the
"1934 Act Registration Statement") (including all pre-effective and post-
effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange and execute on
behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust,
may deem necessary or desirable; (iv) to execute, deliver and perform on behalf
of the Trust, an underwriting agreement with the Sponsor and the underwriter or
underwriters of the Preferred Securities of the Trust; (v) to execute, deliver
and perform on behalf of the Trust a purchase agreement with the Sponsor for the
purchase by the Trust of certain debt securities to be issued by the Sponsor;
and (vi) to execute, deliver and perform on behalf of the Trust, a common
securities purchase agreement with the Sponsor for the purchase by the Sponsor
of the common securities to be issued by the Trust. In the event that any filing
referred to in clauses (i)-(iii) above is required by the rules and regulations
of the Commission, the New York Stock Exchange or state securities or Blue Sky
laws to be executed on behalf of the Trust by the Trustees, the Trustees, in
their capacities as trustees of the Trust, are hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Delaware Trustee, in its capacity as trustee
of the Trust, shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and
regulations of the Commission, the New York Stock Exchange or state securities
or Blue Sky laws. In connection with all of the foregoing, each of the Trustees,
solely in their capacities as trustees of the Trust, and the Sponsor hereby
constitutes and appoints Robert J. Flax as his or its, as the case may be, true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for the Sponsor or such Trustee or in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments (including all pre-effective and post-effective amendments) to the
1933 Act Registration Statement and any registration statements filed under Rule
462(b) under the 1933 Act and the 1934 Act Registration Statement and to file
the same, with all exhibits thereto, and any other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Sponsor or such Trustee might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent or his
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Trust Agreement may be executed in one or more counterparts.
<PAGE>
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be 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. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
7. Wilmington Trust Company, in its capacity as Delaware Trustee, shall
not have the powers or duties of the Trustees set forth herein (except as may be
required under the Business Trust Act) and shall be a trustee hereunder for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
8. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION,
as Sponsor
By: /s/ Robert J. Flax
-------------------------------------
Name: Robert J. Flax
Title: Executive Vice President,
General Counsel and Secretary
WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
Trustee
By: /s/ Donald G. Mackelcan
-------------------------------------
Name: Donald G. Mackelcan
Title: Assistant Vice President
/s/ Robert J. Flax
------------------------------------------
ROBERT J. FLAX, not in his individual
capacity but solely as Trustee
<PAGE>
EXHIBIT 4(m)
TRUST AGREEMENT
OF
BAY VIEW CAPITAL II
THIS TRUST AGREEMENT is made as of September 16, 1998 (this "Trust
Agreement"), by and among Bay View Capital Corporation, a Delaware corporation,
as Sponsor (the "Sponsor"), Wilmington Trust Company, a Delaware banking
corporation, as trustee ("Delaware Trustee"), and Robert J. Flax, as trustee
(the Delaware Trustee and Robert J. Flax being hereinafter jointly referred to
as the "Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Bay View Capital II" (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S)3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in such form as the Trustees may approve.
3. The Sponsor and the Trustees will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3, including any subsequent registration statements filed under Rule 462(b)
under the 1933 Act (as herein defined) (collectively, the "1933 Act Registration
Statement") referred to below, or in such other form as the Trustees and the
Sponsor may approve, to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement or Declaration, the Trustees shall not have
any duty or obligation hereunder or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Sponsor and the Trustees hereby authorize and direct the Sponsor,
as the sponsor of the Trust, (i) to file with the Securities and Exchange
Commission (the "Commission") and to execute, in the case of the 1933 Act
Registration Statement and 1934 Act Registration Statement (as herein defined),
on behalf of the Trust, (a) the 1933 Act Registration Statement, including pre-
effective or post-effective amendments to such Registration Statement, with
exhibits thereto, and any registration statements filed under
<PAGE>
Rule 462(b), relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Preferred Securities required to be filed pursuant to Rule 424 under the 1933
Act, and (c) a Registration Statement on Form 8-A or other appropriate form (the
"1934 Act Registration Statement") (including all pre-effective and post-
effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange and execute on
behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust,
may deem necessary or desirable; (iv) to execute, deliver and perform on behalf
of the Trust, an underwriting agreement with the Sponsor and the underwriter or
underwriters of the Preferred Securities of the Trust; (v) to execute, deliver
and perform on behalf of the Trust a purchase agreement with the Sponsor for the
purchase by the Trust of certain debt securities to be issued by the Sponsor;
and (vi) to execute, deliver and perform on behalf of the Trust, a common
securities purchase agreement with the Sponsor for the purchase by the Sponsor
of the common securities to be issued by the Trust. In the event that any filing
referred to in clauses (i)-(iii) above is required by the rules and regulations
of the Commission, the New York Stock Exchange or state securities or Blue Sky
laws to be executed on behalf of the Trust by the Trustees, the Trustees, in
their capacities as trustees of the Trust, are hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Delaware Trustee, in its capacity as trustee
of the Trust, shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and
regulations of the Commission, the New York Stock Exchange or state securities
or Blue Sky laws. In connection with all of the foregoing, each of the Trustees,
solely in their capacities as trustees of the Trust, and the Sponsor hereby
constitutes and appoints Robert J. Flax as his or its, as the case may be, true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for the Sponsor or such Trustee or in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign any and all
amendments (including all pre-effective and post-effective amendments) to the
1933 Act Registration Statement and any registration statements filed under Rule
462(b) under the 1933 Act and the 1934 Act Registration Statement and to file
the same, with all exhibits thereto, and any other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Sponsor or such Trustee might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent or his
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Trust Agreement may be executed in one or more counterparts.
<PAGE>
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be 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. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
7. Wilmington Trust Company, in its capacity as Delaware Trustee, shall
not have the powers or duties of the Trustees set forth herein (except as may be
required under the Business Trust Act) and shall be a trustee hereunder for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
8. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION,
as Sponsor
By: /s/ Robert J. Flax
----------------------------------
Name: Robert J. Flax
Title: Executive Vice President,
General Counsel and Secretary
WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
Trustee
By: /s/ Donald G. Mackelcan
----------------------------------
Name: Donald G. Mackelcan
Title: Assistant Vice President
/s/ Robert J. Flax
---------------------------------------
ROBERT J. FLAX, not in his individual
capacity but solely as Trustee
<PAGE>
EXHIBIT 4(n)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
BAY VIEW CAPITAL I
______________
AMENDED AND RESTATED DECLARATION
OF TRUST
______________
Dated as of , 199
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE I
INTERPRETATION AND DEFINITION
Section 1.1 Definitions........................................................ 2
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application................................... 9
Section 2.2 List of Holders of Securities...................................... 9
Section 2.3 Reports by the Institutional Trustee............................... 9
Section 2.4 Periodic Reports to Institutional Trustee.......................... 10
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
Section 3.1 Name.............................................................. 12
Section 3.2 Office............................................................ 12
Section 3.3 Purpose........................................................... 13
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..................................... 17
Section 3.9 Certain Duties and Responsibilities of the Institutional Trustee.. 19
Section 3.10 Certain Rights of Institutional Trustee........................... 20
Section 3.11 Delaware Trustee.................................................. 22
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
</TABLE>
i
<PAGE>
ARTICLE IV
SPONSOR
<TABLE>
<S> <C> <C>
Section 4.1 Sponsor's Purchase of Common Securities.......................... 25
Section 4.2 Responsibilities of the Sponsor.................................. 25
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees............................................... 26
Section 5.2 Delaware Trustee................................................. 26
Section 5.3 Institutional Trustee; Eligibility............................... 26
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
Section 5.10 Meetings......................................................... 29
Section 5.11 Delegation of Power.............................................. 30
Section 5.12 Merger, Conversion, Consolidation or Succession to Business...... 30
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions.................................................... 30
ARTICLE VII
ISSUANCE OF SECURITIES
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 [and Conversion Agent]............................... 32
</TABLE>
ii
<PAGE>
ARTICLE VIII
TERMINATION OF TRUST
<TABLE>
<S> <C>
Section 8.1 Termination of Trust.............................................. 33
</TABLE>
ARTICLE IX
TRANSFER OF INTERESTS
<TABLE>
<S> <C>
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 Trust Preferred Security Certificates.................. 36
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates................. 37
</TABLE>
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
<TABLE>
<S> <C>
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
</TABLE>
ARTICLE XI
ACCOUNTING
<TABLE>
<S> <C>
Section 11.1 Fiscal Year...................................................... 43
Section 11.2 Certain Accounting Matters....................................... 43
Section 11.3 Banking.......................................................... 43
Section 11.4 Withholding...................................................... 44
</TABLE>
ARTICLE XII
AMENDMENTS AND MEETINGS
<TABLE>
<S> <C>
Section 12.1 Amendments....................................................... 44
Section 12.2 Meetings of the Holders of Securities; Action by Written Consent. 46
</TABLE>
iii
<PAGE>
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
<TABLE>
<S> <C>
Section 13.1 Representations and Warranties of Institutional Trustee.......... 47
Section 13.2 Representations and Warranties of Delaware Trustee............... 48
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices.......................................................... 48
Section 14.2 Governing Law.................................................... 50
Section 14.3 Intention of the Parties......................................... 50
Section 14.4 Headings......................................................... 50
Section 14.5 Successors and Assigns........................................... 50
Section 14.6 Partial Enforceability........................................... 50
Section 14.7 Counterparts..................................................... 50
<CAPTION>
Page
----
<S> <C>
ANNEX I TERMS OF SECURITIES.............................................. I-1
EXHIBIT A-1 FORM OF TRUST PREFERRED SECURITY CERTIFICATE..................... Al-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE.............................. A2-l
</TABLE>
iv
<PAGE>
CROSS-REFERENCE TABLE*
SECTION OF TRUST INDENTURE ACT SECTION OF
OF 1939, AS AMENDED DECLARATION
- ------------------------------ -----------
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
316(c) 3.6(e)
317(b) 3.8(h)
317(b) 3.8(h)
- ---------------------
* This Cross-Reference table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
v
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BAY VIEW CAPITAL I
^, 199^
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")* dated and
effective as of ^, 199^, 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 ^, 1998 (the "Original Declaration")
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on September ^, 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.
- -------------------
* Unless otherwise indicated or unless the context otherwise requires, (i)
bracketed language relating to conversion of the Trust Preferred Securities
and the Common Securities will be included only if the Trust Preferred
Securities and the Common Securities are convertible into Bay View Common
Stock or other securities; and (ii) all references to specific sections of
the Base Indenture and the Supplemental Indenture are subject to change. In
addition, if the Trust Preferred Securities and the Common Securities are
convertible into securities other than Bay View Common Stock, all references
to Bay View Common Stock will be appropriately modified.
<PAGE>
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;
(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.
"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, Registrar [or Conversion Agent].
-----
"Authorized Officer" of a Person means any Person that is authorized to
------------------
bind such Person.
"Base Indenture" means the ^ Indenture dated as of ^, 199^, between the
--------------
Company and the Debenture Trustee.
["Bay View 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. However,
subject to the provisions of Article [VII] of the Supplemental Indenture, shares
issuable on conversion of the Convertible Debentures shall include only shares
of the class designated as the common stock of the Company on the date of the
Supplemental Indenture or shares of any class or classes resulting from any
reclassification or
2
<PAGE>
reclassifications thereof and which have 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 are not subject to redemption
by the Company; provided, however, that if at any time there shall be more than
one such resulting class, the shares of each such class then so issuable shall
be substantially in the proportion which the total number of shares of such
class resulting from all such reclassifications bears to the total number of
shares of all such classes resulting from all such reclassifications.]
"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.
"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.
"Certificate" means a Common Security Certificate or a Trust Preferred
-----------
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
Trust Preferred 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 Trust Preferred 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 , 199 .
------------
"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 , 199 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.
3
<PAGE>
"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.
["Conversion Agent" has the meaning specified in Section 7.4.]
----------------
["Convertible Debentures" has the same meaning as the term "Debentures."]
----------------------
"Corporate Trust Office" means either (A) the principal corporate trust
----------------------
office of the Institutional 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 ^, Attention: ^, or (B) for
purposes of Section 7.4 hereof (and any similar provisions of this Declaration
concerning the office or agency where Securities may be presented or surrendered
for payment, surrendered for registration of transfer or exchange[, or
surrendered for conversion]), "Corporate Trust Office" means the principal
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York at which at any particular time its corporate trust business shall be
administered in the City of New York, which office at the date of the original
execution of this Declaration is located at c/o ^, Attn: ^; provided that, for
purposes of any request, demand, authorization, direction, notice, consent,
waiver or act of Holders or other document or notice provided or permitted by
this Declaration to be made upon, given or furnished to, or filed with, the
Institutional Trustee. "Corporate Trust Office" means any office referred to in
clause (A) or (B) of this paragraph.
"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.
"Debenture Trustee" means ^, as trustee under the Indenture until a
-----------------
successor is appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the ^% [Convertible [Subordinated/Junior Subordinated]]
----------
Debentures due ^, 20^ to be issued by the Company pursuant to the Indenture; a
form of the certificate evidencing the Debentures appears as Exhibit ^ 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.
----------------
4
<PAGE>
"Definitive Trust Preferred Security Certificates" has the meaning set
------------------------------------------------
forth in Section 9.4.
"Direct Action" has the meaning specified in Section 6(b) of Annex I
-------------
hereto.
"Dissolution Tax Opinion" has the meaning set forth in Section 4(c) of
-----------------------
Annex I hereto.
"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 an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"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.
"Institutional Trustee" means the Trustee meeting the eligibility
---------------------
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
-----------------------------
3.8(c).
5
<PAGE>
"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 Trust Preferred 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 Trust Preferred
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 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.
"No Recognition Opinion" has the meaning set forth in Section 4 of Annex I
----------------------
hereto.
"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 -- conform to definition in Underwriting Agreement] (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.
6
<PAGE>
"Quorum" means a majority of the Regular Trustees or, if there are only two
------
Regular Trustees, both of them.
"Redemption Tax Opinion" has the meaning set forth in Section 4 of Annex I
----------------------
hereto.
"Registrar" has the meaning set forth in Section 7.4 hereof.
---------
"Regular Trustee" has the meaning set forth in Section 5.1(b).
---------------
"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 Institutional Trustee, any
-------------------
officer within the Corporate Trust Office of the Institutional Trustee,
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 Institutional 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 Trust Preferred
----------
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 Trust
---------------------
Preferred 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 Institutional 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
----------------------
^, 199^ between the Company and the Debenture Trustee pursuant to which the
Debentures are to be issued.
7
<PAGE>
"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 Trust Preferred 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 Trust Preferred Securities 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.
"Trust Preferred Securities Guarantee" means the Trust Preferred Securities
------------------------------------
Guarantee Agreement dated as of ^, 199^, between the Sponsor and ^ , as
guarantee trustee.
"Trust Preferred Security" has the meaning specified in Section 7.1.
------------------------
"Trust Preferred 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).
"Trust Preferred Security Certificate" means a certificate representing a
------------------------------------
Trust Preferred Security substantially in the form of Exhibit A-1.
"Underwriting Agreement" means the Underwriting Agreement dated ^, 199^,
----------------------
among the Company, the Trust and the underwriters named therein for the offering
and sale of Trust Preferred Securities.
8
<PAGE>
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.
(b) The Institutional 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 Institutional Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Institutional
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 Institutional 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 Institutional Trustee; provided, however, that so long as the
Institutional Trustee or an Affiliate of the Institutional Trustee is the
Registrar no such list shall be required to be furnished. The Institutional
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
Institutional Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Institutional 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 Institutional Trustee.
------------------------------------
Within 60 days after May 15 of each year, the Institutional Trustee shall
provide to the Holders of the Trust Preferred 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
9
<PAGE>
Indenture Act. The Institutional Trustee shall also comply with the requirements
of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to Institutional Trustee.
-----------------------------------------
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such documents, reports and information as
may be 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 Institutional
Trustee is for informational purposes only and the Institutional 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
Institutional 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 Institutional 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 Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
Securities, waive any past Event of Default in respect of the Trust Preferred
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
the 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 the Declaration may only be waived by the vote of, in the
case of (x) above, Holders of Trust Preferred Securities representing at
least such specified percentage of the aggregate liquidation amount of the
outstanding Trust Preferred Securities or, in the case of (y) above, each
Holder of outstanding Trust Preferred 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
10
<PAGE>
respect to the Trust Preferred 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 Trust Preferred Securities or impair any right consequent there on. Any
waiver by the Holders of the Trust Preferred Securities of an Event of Default
with respect to the Trust Preferred 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 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
the Declaration as provided below in this Section 2.6(b), the Event of
Default under the 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 the Declaration as provided below in this Section 2.6(b), the
Event of Default under the 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
Trust Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default with respect to the Trust Preferred Securities have
been so cured, waived or otherwise eliminated, the Institutional Trust will be
deemed to be acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities will have the
right to direct the Institutional 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 Institutional Trustee
at the direction of the Holders of the Trust Preferred Securities constitutes a
waiver of the
11
<PAGE>
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.
Section 2.7 Event of Default; Notice.
------------------------
(a) The Institutional Trustee shall, within 90 days after the occurrence of
an of Default, transmit by mail, first class postage prepaid, to the Holders of
the Securities, notices of all defaults with respect to the Securities actually
known to a Responsible Officer of the Institutional Trustee, unless such
defaults have been cured before the giving of such notice (the term "defaults"
for the purposes of this Section 2.7(a) being hereby defined to be an Indenture
Event of Default with respect to the Debentures, not including any periods of
grace provided for therein and irrespective of the giving of any notice provided
therein); provided that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debentures, the Institutional Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Institutional Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities.
(b) The Institutional 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 (A) [Section
501(1)] of the Base Indenture, as amended and restated by [Section 2.9(c)]
of the Supplemental Indenture, or (B) [Section 501(2)] of the Base
Indenture; or
(ii) any default with respect to the Debentures as to which the
Institutional Trustee shall have received written notice or of which a
Responsible Officer of the Institutional Trustee charged with the
administration of the 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
12
<PAGE>
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 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 Institutional 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 Institutional 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
Institutional 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 Trust Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Trust Preferred 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 Trust
Preferred 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 Trust Preferred
Securities, at the direction of the Sponsor, to:
13
<PAGE>
(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 Trust Preferred 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 part of the Trust Preferred Securities in any State in which the
Sponsor has determined to qualify or register such Trust Preferred
Securities for sale;
(iii) file an application, prepared by the Sponsor, to the New York
Stock Exchange, Inc. or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Trust Preferred
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 Trust Preferred Securities and, if deemed necessary or
appropriate by the Regular Trustees, the guarantee of the Sponsor in respect
of the Trust Preferred 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 Trust Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the Trust
Preferred 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 Institutional Trustee for the benefit of the Holders of the
Trust Preferred Securities and the Holders of Common Securities;
(d) to give the Sponsor and the Institutional 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
Institutional 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 Trust Preferred
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 Institutional Trustee
has the exclusive power to bring such Legal Action;
14
<PAGE>
(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;
(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 Institutional 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 Trust Preferred
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
15
<PAGE>
(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.
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 Institutional 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 Institutional
Trustee) shall cause the Trust not 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 Institutional Trustee) shall cause the Trust not
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
Debenture 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.
16
<PAGE>
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 Institutional Trustee (in its capacity as such) in
trust for the benefit of the Holders of the Securities. The right, title and
interest of the Institutional Trustee to the Debentures shall vest automatically
in each Person who may hereafter be appointed as Institutional 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 Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee). [The Trust
and the Institutional Trustee shall not convert any Debentures held by either of
them except pursuant to a notice of conversion delivered to the Conversion Agent
by a Holder of Trust Securities.]
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of and under the
exclusive control of the Institutional 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 Institutional Trustee, deposit such funds
into the Institutional Trustee Account and make payments to the Holders of
the Trust Preferred Securities and Holders of the Common Securities from
the Institutional Trustee Account in accordance with Section 6.1. Funds in
the Institutional Trustee Account shall be held uninvested until disbursed
in accordance with this Declaration. The Institutional Trustee Account
shall be an account that is maintained with a banking institution (which
may be the Institutional Trustee) the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the Trust
Preferred 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 Trust Preferred 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 Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
17
<PAGE>
(e) The Institutional 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 Institutional Trustee has actual knowledge or the Institutional Trustee's
duties and obligations under this Declaration or the Trust Indenture Act. The
Holders of a Majority in liquidation amount of the Trust Preferred Securities
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee or to direct
the exercise of any trust or power conferred upon the Institutional Trustee
under the Declaration, including the right to direct the Institutional Trustee
to exercise the remedies available to it as a holder of the Debentures. If the
Institutional Trustee fails to enforce its rights under the Debentures, a Holder
of Trust Preferred Securities, to the fullest extent permitted by law, may
institute a legal proceeding directly against the Company to enforce the
Institutional Trustee's rights under the Debentures without first instituting
any legal proceeding against the Institutional 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, premium, if any, or interest on the Debentures on the date such principal,
premium or interest, as the case may be, is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Trust Preferred Securities
may directly institute a proceeding for enforcement of payment to such Holder
directly of the principal of, premium, if any, or interest on the Debentures
having a principal amount equal to the aggregate liquidation amount of
the Trust Preferred 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, premium, if any, or interest on such Debentures, and the Company shall be
subrogated to the rights of such Holder of Trust Preferred Securities to the
extent of any payment made by the Company to such Holder of Trust Preferred
Securities in such Direct Action. Except as provided in the preceding sentences
of this paragraph, the Holders of Trust Preferred Securities shall have no right
or power to exercise directly any other remedy available to the holders of the
Debentures.
(f) The Institutional 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 Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7.
(g) The Institutional 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 Event of Default actually known to a Responsible Officer of
the Institutional Trustee occurs and is continuing, the Institutional 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.
(h) The Institutional 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)
18
<PAGE>
of the Trust Indenture Act. Any Paying Agent may be removed by the Institutional
Trustee at any time and a successor Paying Agent or additional Paying Agents may
be appointed at any time by the Institutional Trustee.
(i) Subject to this Section 3.8, the Institutional Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Institutional 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 Institutional 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 Institutional
--------------------------------------------------------
Trustee.
-------
(a) The Institutional 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 Institutional 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 Institutional Trustee has actual
knowledge, the Institutional 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.
(b) No provision of this Declaration shall be construed to relieve the
Institutional 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 Institutional Trustee shall
be determined solely by the express provisions of this Declaration and the
Institutional 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 Institutional Trustee; and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional 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 Institutional 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 Institutional Trustee, the
Institutional Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Declaration;
19
<PAGE>
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Institutional 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 Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under this
Declaration;
(iv) no provision of this Declaration shall require the Institutional
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
Institutional Trustee against such risk or liability is not reasonably assured
to it;
(v) the Institutional Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Institutional
Trustee Account shall be to deal with such property in a similar manner as the
Institutional Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Institutional
Trustee under this Declaration and the Trust Indenture Act;
(vi) the Institutional 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 Institutional 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 Institutional Trustee need not be segregated from
other funds held by it except in relation to the Institutional Trustee Account
maintained by the Institutional Trustee pursuant to Section 3.8(c)(i) and except
to the extent otherwise required by law; and
(viii) the Institutional 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 Institutional Trustee be liable for any
default or misconduct of the Regular Trustees or the Sponsor.
Section 3.10 Certain Rights of Institutional Trustee.
---------------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument,
20
<PAGE>
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 Institutional
Trustee shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Institutional 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 Institutional 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 Institutional 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 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
Institutional 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 Institutional 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
Institutional Trustee security and indemnity, reasonably satisfactory to the
Institutional Trustee, against the costs, expenses (including attorneys' fees
and expenses and the expenses of the Institutional 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 Institutional 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 Institutional Trustee to
take any action it is empowered to take under this Declaration following an
Event of Default or (b) relieve the Institutional 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 Institutional 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 Institutional Trustee in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
21
<PAGE>
(viii) the Institutional 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 Institutional
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 Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional 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 Institutional 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
Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive written instructions
with respect to enforcing any remedy or right or taking any other action
hereunder, the Institutional 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 Institutional Trustee under the terms of the
Securities in 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
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration; and
(xii) the Institutional 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 Institutional 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 Institutional 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 Institutional
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
22
<PAGE>
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.
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)(vii)
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 Institutional
Trustee, consolidate, amalgamate, merge with or into, 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 Trust Preferred Securities other
securities having substantially the same terms as the Trust Preferred
Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Trust
23
<PAGE>
Preferred 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 Institutional Trustee as the holder of
the Debentures;
(iii) the Trust Preferred 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 Trust Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does not
cause the Trust Preferred 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);
(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 any other Person or permit any
other Person to consolidate, amalgamate,
24
<PAGE>
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 Trust Preferred
Securities are sold.
Section 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Trust Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(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 Trust
Preferred Securities and the Trust Preferred 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 Trust Preferred Securities and the Trust
Preferred 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 New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq National Market for listing upon notice of issuance of
any Trust Preferred Securities and, if deemed necessary or advisable by the
Sponsor, the Trust Preferred 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 Trust Preferred
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 Trust Preferred Securities and, if deemed necessary or advisable by the
Sponsor, the Trust Preferred 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 Trust Preferred
Securities.
25
<PAGE>
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees.
------------------
The number of Trustees initially shall be five (5), 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 Institutional Trustee for so long as
this Declaration is 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 Institutional Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Institutional Trustee shall also be the Delaware
Trustee and Section 3.11 shall have no application.
Section 5.3 Institutional Trustee; Eligibility.
----------------------------------
(a) There shall at all times be one Trustee which shall act as
Institutional 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 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 $50,000,000, 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
26
<PAGE>
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 Institutional Trustee shall cease to be eligible to
so act under Section 5.3(a), the Institutional Trustee shall immediately resign
in the manner and with the effect set forth in Section 5.7(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Institutional 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 Trust Preferred 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.
(e) The initial Institutional Trustee shall be: ^.
Section 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee
---------------------------------------------------------------
Generally.
---------
Each Regular Trustee and the Delaware Trustee (unless the Institutional
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:
^
^
^
(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: and
(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
27
<PAGE>
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: ^ .
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 Institutional Trustee shall not be
removed in accordance with Section 5.7(a) until a successor Institutional
Trustee (a "Successor Institutional Trustee") has been an appointed and has
accepted such appointment by written instrument executed by such Successor
Institutional 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
Institutional Trustee shall be effective:
(A) Until a Successor Institutional Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust, the
Sponsor and the resigning Institutional 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
28
<PAGE>
(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 Institutional Trustee or Successor Delaware
Trustee, as the case may be, if the Institutional Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this Section
5.7.
(e) If no Successor Institutional 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 Institutional Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Institutional 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 Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
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
29
<PAGE>
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
(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 Institutional 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 Institutional 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 Institutional Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Institutional 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.
30
<PAGE>
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 Trust
Preferred 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) and Additional Interest (as defined in the Indenture)),
premium and/or principal on the Debentures held by the Institutional Trustee
(the amount of any such payment being a "Payment Amount"), the Institutional
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
[convertible] Trust Preferred Securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (the "Trust Preferred Securities") and one class of [convertible] 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 in the assets of the
Trust other than the Trust Preferred Securities and the Common Securities.
(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 Trust Preferred Securities as provided in this
Declaration, the Trust Preferred 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 Trust Preferred
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
31
<PAGE>
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 the Declaration any such person was not such a
Regular Trustee.
(b) One Regular Trustee shall sign the Trust Preferred 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 Trust Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Institutional Trustee. The
signature shall be conclusive evidence that the Trust Preferred Security has
been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Institutional Trustee shall authenticate the Trust Preferred Securities for
original issue.
The Institutional Trustee may appoint, with the consent of the Regular
Trustees, an authenticating agent acceptable to the Trust to authenticate Trust
Preferred Securities. An authenticating agent may authenticate Trust Preferred
Securities whenever the Institutional Trustee may do so. Each reference in this
Declaration to authentication by the Institutional Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Institutional Trustee to deal with the Company or an Affiliate of the Company.
Section 7.3 Form and Dating.
---------------
The Trust Preferred Securities and the Institutional Trustee's certificate
of authentication shall be substantially in the form of Exhibit A-1 and the
Common Securities shall be substantially in the 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 Institutional Trustee in writing. Each Trust
Preferred 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 Institutional 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 [and Conversion Agent].
----------------------------------
In the event that the Trust Preferred 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 Trust Preferred Securities may
be presented for payment ("Paying Agent") and a Registrar (as defined below)
[and a Conversion Agent (as defined below)]. The Trust shall
32
<PAGE>
maintain a Paying Agent[, an office or agency where Securities may be presented
for conversion ("Conversion 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 Trust Preferred Securities and of the
transfer and exchange thereof. The Trust may appoint the Paying Agent, Registrar
[and the Conversion Agent] and may appoint one or more additional paying agents,
one or more additional registrars [and one or more additional conversion agents]
in such other locations as it shall determine. The term "Paying Agent" includes
any additional paying agent, the term "Registrar" includes any additional
registrar[, and the term "Conversion Agent" includes any additional conversion
agent]. The Trust may change any Paying Agent, Registrar or [Conversion Agent]
without prior notice to any Holder. The Trust shall notify the Institutional
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, Registrar [or Conversion Agent], the Institutional Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent, Registrar or
[Conversion Agent]. The Trust shall act as Paying Agent, Registrar and
[Conversion Agent] for the Common Securities. The Paying Agent, Registrar and
[Conversion Agent] shall be entitled to the rights and protections extended to
the Institutional Trustee when acting in such capacity.
The Trust initially appoints the Institutional Trustee, acting through its
Corporate Trust Office in The City of New York, as [Conversion Agent], Registrar
and Paying Agent for the Trust Preferred Securities.
ARTICLE VIII
TERMINATION OF TRUST
Section 8.1 Termination of Trust.
--------------------
(a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; upon receipt by the Trust of the
consent of the Holders of at least a Majority in liquidation amount of the
outstanding Securities voting together as a single class to dissolve the
Trust and file a certificate of cancellation with respect thereto, or 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;
(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;
33
<PAGE>
(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 Institutional Trustee shall have been
distributed to the Holders of Securities in exchange for all of the
Securities;
[(vi) upon the conversion of all outstanding Trust Preferred
Securities into Bay View Common Stock or other cash, securities or
property, as the case may be;]
(vii) the expiration of the term of the Trust on ; or
(viii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(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 Trust Preferred Securities are presented to a Registrar with a
request to register the transfer thereof or to exchange them for an equal number
of Trust Preferred 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
Institutional Trustee shall authenticate certificates for the Trust Preferred
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
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, Trust Preferred 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
34
<PAGE>
(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 for conversion] 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 [or conversion], shall
be canceled by the Regular Trustees (in the case of Common Securities) or by the
Institutional Trustee (in the case of Trust Preferred 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 [or
Conversion Agent] in order to receive payments due upon redemption [or in order
to convert such Securities, respectively].
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 Trust Preferred Securities,
the Trust Preferred Securities Certificates, on original issuance, will be
issued in the form of one or more fully registered, global Trust Preferred
Security Certificates (each a "Global Certificate"), to be
35
<PAGE>
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 Trust
Preferred Security Beneficial Owner will receive a definitive Trust Preferred
Security Certificate representing such Trust Preferred Security Beneficial
Owner's interests in such Global Certificates, except as provided in Section
9.7. Unless and until definitive, fully registered Trust Preferred Security
Certificates (the "Definitive Trust Preferred Security Certificates") have been
issued to the Trust Preferred 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 Trust Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the Trust
Preferred 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 Trust Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Trust Preferred 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
Trust Preferred Securities have voted on any matter provided for in this
Declaration, so long as Definitive Trust Preferred 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 Trust Preferred Security
Beneficial Owners' votes or assigning the right to vote on any matter to any
other Persons either in whole or in part.
Section 9.5 Notices to Clearing Agency.
--------------------------
Whenever a notice or other communication to the Trust Preferred Security
Holders is required under this Declaration, unless and until Definitive Trust
Preferred Security Certificates shall have been issued to the Trust Preferred
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
Trust Preferred Security Holders to the Clearing Agency, and shall have no
notice obligations to the Trust Preferred 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 Trust Preferred Securities, the Regular Trustees
may, in their sole discretion, appoint a successor Clearing Agency with respect
to such Trust Preferred Securities.
36
<PAGE>
Section 9.7 Definitive Trust Preferred Security Certificates.
------------------------------------------------
If:
(a) 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
(b) the Regular Trustees elect, in their sole discretion but after
consultation with the Sponsor, to terminate the book entry system through the
Clearing Agency with respect to the Trust Preferred Securities, and any Regular
Trustee executes and delivers to the Institutional Trustee an order to the
effect that the Global Certificates will be exchangeable for Definitive Trust
Preferred Securities Certificates; or
(c) an Event of Default has occurred and is continuing,
then:
(d) Definitive Trust Preferred Security Certificates shall be prepared by
------------------------
the Regular Trustees on behalf of the Trust with respect to such Trust Preferred
Securities; and
(e) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Trust Preferred Security Certificates to be delivered to Trust
------------------------ -----
Preferred 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 Trust Preferred 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
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 Trust Preferred 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 Trust Preferred Securities, the Institutional
Trustee, and if the Regular Trustees and, in the case of Trust Preferred
Securities, the Institutional Trustee shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Institutional Trustee and the Regular
Trustees such security or indemnity as may be required by them to keep each of
them and the Sponsor harm-
37
<PAGE>
less, then, in the absence of notice that suchCertificate shall have been
acquired by a bona fide purchaser, any Regular Trustee on behalf of the Trust
shall execute and deliver or, in the case of Trust Preferred Securities, any
Regular Trustee shall execute and the Institutional 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
Institutional 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 Institutional 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.
(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 Trust Preferred 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
38
<PAGE>
the case of the Institutional 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 Institutional 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 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
39
<PAGE>
(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
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
40
<PAGE>
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 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 Trust Preferred 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 Trust Preferred 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,
41
<PAGE>
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 Institutional Trustee, (ii) the Delaware Trustee, (iii) the Paying
Agent, [(iv) the Conversion Agent,] (v) any Affiliate of the Institutional
Trustee, and the Delaware Trustee, and (vi) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee, the Paying Agent, [the
Conversion Agent] and the Delaware Trustee (each of the Persons in (i) through
(vi) 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 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 10.4(b) shall survive the satisfaction
and discharge of this Declaration or the resignation or removal of the Delaware
Trustee or the Institutional Trustee, as the case may be.
Section 10.5 Outside Business.
----------------
Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional
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
Institutional 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 Institutional
Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act
42
<PAGE>
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.
(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 Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for
43
<PAGE>
such accounts shall be designated by any of the Regular Trustees; provided,
however, that the Institutional Trustee shall designate the signatories for the
Institutional 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.
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 Institutional Trustee, the Institutional 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:
(i) unless, in the case of any proposed amendment, the Institutional
Trustee shall have first received 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);
44
<PAGE>
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee shall have first received:
(A) 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
(B) 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
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified for purposes of United States
federal income taxation as other than a grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(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) (c) and this Section 12.1 shall not be amended without the consent of
all of the Holders of the Securities;
(e) Article 4 shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities;
(f) the rights of the Holders of the Common Securities under Article 5 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 to:
(i) cure any ambiguity;
(ii) 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;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
45
<PAGE>
(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; and
(v) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the
Holders.
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
Trust Preferred 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 10% 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:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 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 Trust Preferred 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;
46
<PAGE>
(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 Trust Preferred
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.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL
TRUSTEE AND DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of Institutional Trustee.
-------------------------------------------------------
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants, as applicable, to
the Trust and the Sponsor at the time of the Successor Institutional Trustee's
acceptance of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a national banking association 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, the Declaration;
(b) the execution, delivery and performance by the Institutional Trustee of
the Declaration has been duly authorized by all necessary corporate action on
the part of the Institutional Trustee. The Declaration has been duly executed
and delivered by the Institutional Trustee, and it constitutes a legal, valid
and binding obligation of the Institutional 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
47
<PAGE>
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 the Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional 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 Institutional Trustee of the 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, the
Declaration.
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and the Declaration. The Declaration under
Delaware law constitutes a 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 the 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:
48
<PAGE>
(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: Chief Financial Officer
(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):
^
^
^
Attention: ^
(c) if given to the Institutional Trustee, at the mailing address set forth
below (or such other address as the Institutional Trustee may give notice of to
the Holders of the Securities):
^
^
^
Attention: ^
(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):
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.
49
<PAGE>
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.
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.
50
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
-----------------------------------
^, as Regular Trustee
-----------------------------------
^, as Regular Trustee
-----------------------------------
^, as Regular Trustee
^,
as Delaware Trustee
By:
--------------------------------
Name:
Title:
^,
as Institutional Trustee
By:
--------------------------------
Name:
Title:
BAY VIEW CAPITAL CORPORATION,
as Sponsor
By:
--------------------------------
Name:
Title:
51
<PAGE>
ANNEX I
TERMS OF
[$^/^%] TRUST PREFERRED SECURITIES
[$^/^%] COMMON SECURITIES
Pursuant to Section 7. 1 of the Amended and Restated Declaration of Trust,
dated as of ^, 199^ (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred 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) TRUST PREFERRED SECURITIES. ^ Trust Preferred Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
$^, and a liquidation amount with respect to the assets of $^ per Preferred
Security, are hereby designated for the purposes of identification only as
"[$^/^%] [Convertible] Trust Preferred Securities[, Series ^]" (the "Trust
Preferred Securities"). The Preferred Security Certificates evidencing the Trust
Preferred 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 Trust Preferred Securities are listed.
(b) COMMON SECURITIES. ^ Common Securities of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of $^, and a
liquidation amount with respect to the assets of the Trust of $^ per Common
Security, are hereby designated for the purposes of identification only as
"[$^/^%] 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 ____% (the "Coupon Rate") of the stated liquidation amount of $^ per
Security, such rate being the rate of interest payable on the Debentures to be
held by the Institutional 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 Institutional Trustee and to the extent
the Institutional 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
1
<PAGE>
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.
(b) Distributions on the Securities will be cumulative, will accumulate
from ^, 199^, and will be payable quarterly in arrears, on ^, ^, ^ and ^ of each
year, commencing on ^,^ except as otherwise described below. So long as the
Sponsor shall not be in default in the payment of interest on the Debentures,
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 Trust Preferred 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 Trust Preferred Securities
will be made as described under the heading ["Description of the Trust Preferred
Securities -- Book-Entry Only Issuance -- The Depository Trust Company"] in the
Prospectus Supplement dated ^, 199^, to the Base Prospectus dated ^, 199^
(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 Trust
Preferred Securities. If the Trust Preferred Securities shall not continue to
remain in book-entry only form, the relevant record dates for the Trust
Preferred Securities shall 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 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
2
<PAGE>
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 of an election by the Holder to convert its Securities
through the Conversion Agent into Bay View Common Stock pursuant to the terms of
the Securities as set forth in this Annex I to the Declaration, no payment,
allowance or adjustment shall be made with respect to accumulated and unpaid
Distributions on such Securities, or be required to be made; provided, however,
that if a Security is surrendered for conversion after the close of business on
any regular record date for payment of a Distribution and before the opening of
business on the corresponding Distribution payment date, then, notwithstanding
such conversion, the Distribution payable on such Distribution payment date will
be paid in cash to the person in whose name the Security is registered at the
close of business on such record date, and (other than a Security or a portion
of a Security called for redemption on a redemption date occurring after such
record date and on or prior to such Distribution payment date) when so
surrendered for conversion, the Security must be accompanied by payment of an
amount equal to the Distribution payable on such Distribution payment date.]
(e) 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 $^ 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
3
<PAGE>
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.
(b) If fewer than all the outstanding Securities are to be so redeemed, the
Common Securities and the Trust Preferred Securities will be redeemed Pro Rata
and the Trust Preferred Securities to be redeemed will be as described in
Section 4(g) below.
(c) If, at any time, a Tax Event or an Investment Company Event (each, as
defined below, a "Special Event") shall occur and be continuing, the Regular
Trustees may with the consent of the Sponsor, except in certain limited
circumstances in relation to a Tax Event described in this Section 4(c),
dissolve the Trust and, after satisfaction of creditors, cause Debentures held
by the Institutional 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 such dissolution and distribution shall be conditioned on (i) the Trustees'
receipt of an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may rely
on published revenue rulings of the Internal Revenue Service, to the effect that
the Holders of the Securities will not recognize any gain or loss for United
States federal income tax purposes as a result of the dissolution of the Trust
and the distribution of Debentures, (ii) in the case of a Tax Event, the Sponsor
or the Trust being unable to avoid, within the 90 Day Period, the Tax Event by
taking some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure that has no adverse effect on the
Trust, the Sponsor, or the Holders of the Securities ("Ministerial Action"), and
(iii) the Sponsor's prior written consent to such dissolution and distribution.
If in the event of a Tax Event (i) after receipt of a Dissolution Tax
Opinion (as defined hereinafter) by the Regular Trustees, the Sponsor has
received an opinion (a "Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as a result of a Tax
Event, there is more than an insubstantial risk that the Sponsor would be
precluded from deducting the interest on the Debentures for United States
federal income tax purposes even after the Debentures were distributed to the
Holders of Securities in liquidation of such Holders' interests in the Trust as
described in this Section 4(c), or (ii) the Trustees shall have been informed by
such tax counsel that a No Recognition Opinion cannot be delivered to the Trust,
the Sponsor shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Debentures in whole or in part, at a
redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest thereon, for cash within 90 days following the occurrence of
such Tax Event. Following such redemption, Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if at any time there is available to the Sponsor
or the Trust the opportunity to
4
<PAGE>
eliminate, within such 90 Day Period, the Tax Event by taking some Ministerial
Action, the Trust or the Sponsor will pursue such Ministerial Action in lieu of
redemption.
"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 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 (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 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").
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 Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities until such certificates are
presented to the Sponsor or its agent for exchange.
5
<PAGE>
(d) The Trust may not redeem fewer than all the outstanding Securities
unless all accumulated and unpaid Distributions have been paid 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 New York Stock Exchange or on such other
national securities exchange or similar organization as the Trust Preferred
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 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 Trust Preferred
Securities are to be redeemed, the Trust Preferred Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Trust Preferred Securities, it
being understood that, in respect of Trust Preferred 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 Trust Preferred Securities are in book-entry
form, with respect to the Trust Preferred Securities, by 12:00 noon, New York
City time, on the redemption date, provided that the Sponsor has paid the
Institutional Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional 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 Trust Preferred Securities and will give the Depository
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Trust Preferred Securities, and (B) with respect to Trust
Preferred Securities issued in definitive form and Common Securities, provided
that the Sponsor has paid the Institutional Trustee a sufficient amount of cash
in connection with the related redemption or maturity of the Debentures, the
Institutional Trustee will pay the relevant Redemption Price to the Holders of
such Securities by
6
<PAGE>
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 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
Institutional 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 Trust Preferred Securities, the
Depository or its nominee (or any successor Clearing Agency or its nominee) if
the Global Certificates have been issued or, if Definitive Preferred 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 Trust
Preferred Securities by tender, in the open market or otherwise.
5. [Conversion Rights.
The Holders of Securities shall have the right at any time prior to the
close of business on ^ (or, in the case of Securities called for redemption,
prior to the close of business on the Business Day prior to the redemption
date), at their option, to cause the Conversion Agent to convert Securities, on
behalf of the converting Holders, into shares of [Bay View Common Stock] in the
manner described herein on and subject to the following terms and conditions:]
(a) [The Securities will be convertible at the office of the Conversion
Agent into fully paid and nonassessable shares of Bay View Common Stock pursuant
to the Holder's direction to the Conversion Agent to exchange such Securities
for a portion of the Debentures theretofore held by the Trust on the basis of
one Security per $^ principal amount of Debentures, and immediately convert such
amount of Debentures into fully paid and nonassessable shares of Bay View Common
Stock at an initial rate of _____ shares of Bay View Common Stock per $^
principal amount of Debentures (which is equivalent to a conversion price of $^
per share of
7
<PAGE>
Bay View Common Stock, subject to certain adjustments set forth in [Sections 7.3
and 7.4] of the Supplemental Indenture (as so adjusted, "Conversion Price")).]
(b) [In order to convert Securities into Bay View Common Stock the Holder
shall submit to the Conversion Agent at the office referred to above an
irrevocable request to convert Securities on behalf of such Holder (the
"Conversion Request"), together, if the Securities are in certificated form,
with such certificates. The Conversion Request shall (i) set forth the number of
Securities to be converted and the name or names, if other than the Holder, in
which the shares of Bay View Common Stock should be issued and (ii) direct the
Conversion Agent (a) to exchange such Securities for a portion of the Debentures
held by the Trust (at the rate of exchange specified in the preceding paragraph)
and (b) to immediately convert such Debentures on behalf of such Holder, into
Bay View Common Stock (at the conversion rate specified in the preceding
paragraph). The Conversion Agent shall notify the Trust of the Holder's election
to exchange Securities for a portion of the Debentures held by the Trust and the
Trust shall, upon receipt of such notice, deliver to the Conversion Agent the
appropriate principal amount of Debentures for exchange in accordance with this
Section. The Conversion Agent shall thereupon notify Bay View Capital
Corporation of the Holder's election to convert such Debentures into shares of
Bay View Common Stock. If a Security is surrendered for conversion after the
close of business on any regular record date for payment of a Distribution and
before the opening of business on the corresponding Distribution payment date,
then, notwithstanding such conversion, the Distribution payable on such
Distribution payment date will be paid in cash to the person in whose name the
Security is registered at the close of business on such record date, and (other
than a Security or a portion of a Security called for redemption on a redemption
date occurring after such record date and on or prior to such Distribution
payment date) when so surrendered for conversion, the Security must be
accompanied by payment of an amount equal to the Distribution payable on such
Distribution payment date. Except as provided above, neither the Trust nor the
Sponsor will make, or be required to make, any payment, allowance or adjustment
upon any conversion on account of any accumulated and unpaid Distributions
accumulated on the Securities (including any Additional Amounts accumulated
thereon) surrendered for conversion, or on account of any accumulated and unpaid
dividends on the shares of Bay View Common Stock issued upon such conversion.
Securities shall be deemed to have been converted immediately prior to the close
of business on the day on which a Notice of Conversion relating to such
Securities is received by the Trust in accordance with the foregoing provision
(the "Conversion Date"). The Person or Persons entitled to receive Bay View
Common Stock issuable upon conversion of the Debentures shall be treated for all
purposes as the record holder or holders of such Bay View Common Stock at such
time. As promptly as practicable on or after the Conversion Date, Bay View
Capital Corporation shall issue and deliver at the office of the Conversion
Agent a certificate or certificates for the number of full shares of Bay View
Common Stock issuable upon such conversion, together with the cash payment, if
any, in lieu of any fraction of any share to the Person or Persons entitled to
receive the same, unless otherwise directed by the Holder in the notice of
conversion and the Conversion Agent shall distribute such certificate or
certificates to such Person or Persons.]
(c) [Each Holder of a Security by his acceptance thereof appoints the
Person serving as Conversion Agent under the Declaration as "Conversion Agent"
for the purpose of effecting the conversion of Securities in accordance with
this Section. In effecting the conversion and transactions described in this
Section, the Conversion Agent shall be acting as agent of the
8
<PAGE>
Holders of Securities directing it to effect such conversion transactions. The
Conversion Agent is hereby authorized (i) to exchange Securities from time to
time for Debentures held by the Trust in connection with the conversion of such
Securities in accordance with this Section and (ii) to convert all or a portion
of the Debentures into Bay View Common Stock and thereupon to deliver such
shares of Bay View Common Stock in accordance with the provisions of this
Section and to deliver to the Trust a new Debenture or Debentures for any
resulting unconverted principal amount.]
(d) [No fractional shares of Bay View Common Stock will be issued as a
result of conversion, but in lieu thereof, such fractional interest will be paid
in cash by Bay View Capital Corporation to the Conversion Agent, which in turn
will make such payment to the Holder or Holders of Securities so converted.]
(e) [Bay View Capital Corporation shall at all times reserve and keep
available out of its authorized and unissued Bay View Common Stock, solely for
issuance upon the conversion of the Debentures, free from any preemptive or
other similar rights, such number of shares of Bay View Common Stock as shall
from time to time be issuable upon the conversion of all the Debentures then
outstanding. Notwithstanding the foregoing, Bay View Capital Corporation shall
be entitled to deliver upon conversion of Debentures, shares of Bay View Common
Stock reacquired and held in the treasury of Bay View Capital Corporation (in
lieu of the issuance of authorized and unissued shares of Bay View Common
Stock), so long as any such treasury shares are free and clear of all liens,
charges, security interests or encumbrances. Any shares of Bay View Common Stock
issued upon conversion of the Debentures shall be duly authorized, validly
issued and fully paid and nonassessable. The Trust shall deliver the shares of
Bay View Common Stock received upon conversion of the Debentures to the
converting Holder free and clear of all liens, charges, security interests and
encumbrances, except for United States withholding taxes. Each of Bay View
Capital Corporation and the Trust shall prepare and shall use its best efforts
to obtain and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all applicable
requirements as to registration or qualification of Bay View Common Stock (and
all requirements to list Bay View Common Stock issuable upon conversion of
Debentures that are at the time applicable), in order to enable Bay View Capital
Corporation to lawfully issue Bay View Common Stock to the Trust upon conversion
of the Debentures and the Trust to lawfully deliver Bay View Common Stock to
each Holder upon conversion of the Securities.]
(f) [Bay View Capital Corporation will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of Bay View Common Stock
on conversion of Debentures and the delivery of the shares of Bay View Common
Stock by the Trust upon conversion of the Securities. Bay View Capital
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares of Bay
View Common Stock in a name other than that in which the Securities so converted
were registered, and no such issue or delivery shall be made unless and until
the person requesting such issue has paid to the Trust the amount of any such
tax, or has established to the satisfaction of the Trust that such tax has been
paid.]
(g) [Nothing in the preceding Paragraph (f) shall limit the requirement of
the Trust to withhold taxes pursuant to the terms of the Securities or set forth
in this Annex I to the
9
<PAGE>
Declaration or to the Declaration itself or otherwise require the Institutional
Trustee or the Trust to pay any amounts on account of such withholdings.]
6. Voting Rights - Trust Preferred Securities.
(a) Except as provided under Sections 6(b) and 8 and as otherwise required
by law and the Declaration, the Holders of the Trust Preferred 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 Trust Preferred Securities, voting
separately as a class, may direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under the
Declaration, including the right to direct the Institutional 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 [Section 513] of 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 Event of Default has
occurred under the Indenture and is continuing, then the Holders of 25% in
liquidation amount of the Trust Preferred Securities, voting separately as a
class, may direct the Institutional Trustee, as holder of the Debentures, to
declare the principal amount of 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 the Holders of greater than a
majority in principal amount of Debentures affected thereby (a "Super
Majority"), the Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the proportion in
liquidation amount of the Trust Preferred Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding. The Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Trust Preferred
Securities. Other than with respect to directing the time, method and place of
conducting any remedy available to the Institutional Trustee or the Debenture
Trustee as set forth above, the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the Trust Preferred
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. The Holders of a Majority in liquidation amount of the Trust
Preferred Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee
or to direct the exercise of any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the Institutional
Trustee to exercise the remedies available to it as a holder of the Debentures.
If the Institutional Trustee fails to enforce its rights under the Debentures, a
Holder of Trust Preferred Securities, to the fullest extent permitted by law,
may institute a legal proceeding directly against the Sponsor to enforce the
Institutional Trustee's rights under the Debentures without first instituting
any legal proceeding against the Institutional 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 Trust Preferred 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
10
<PAGE>
amount equal to the aggregate liquidation amount of the Trust Preferred
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 Trust Preferred
Securities to the extent of any payment made by the Sponsor to such Holder of
Trust Preferred Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Trust Preferred 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 Trust Preferred Securities may be
given at a separate meeting of Holders of Trust Preferred 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 Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities will be
required for the Trust to redeem and cancel Trust Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Trust Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the Trust
Preferred 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.
7. Voting Rights - Common Securities.
(a) Except as provided under Sections 7(b), (c) and 8 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 5 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 Trust Preferred 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
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any
11
<PAGE>
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under [Section 513] of 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 the Holders of greater than a majority in
principal amount of Debentures affected thereby (a "Super Majority"), the
Institutional Trustee may only give such consent or take such action at the
written direction of 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. Pursuant to this
Section 7(c), the Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Trust Preferred
Securities. Other than with respect to directing the time, method and place of
conducting any remedy available to the Institutional Trustee or the Debenture
Trustee as set forth above, the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the Common Securities under
this paragraph unless the Institutional 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 Institutional 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 Institutional Trustee's rights under
the Declaration, without first instituting a legal proceeding against the
Institutional 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 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.
8. 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, (i) 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, or (ii) the dissolution, winding-up
or termination of the Trust, other than as described in Section 8.1 of the
Declaration, 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
12
<PAGE>
at least a Majority in liquidation amount of the Securities affected thereby;
provided, however, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Trust Preferred 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 Institutional 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
Institutional 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 (a "Super Majority"), the Institutional 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 Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Securities
under this Section 8(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.
9. 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 payment shall be paid first to each Holder of the Trust
Preferred Securities pro rata according to the aggregate liquidation amount of
Trust Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Trust Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Trust Preferred
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.
10. Ranking.
The Trust Preferred 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
Trust Preferred Securities.
13
<PAGE>
11. Listing.
The Regular Trustees shall use their best efforts to cause the Trust
Preferred Securities to be listed for quotation on the New York Stock Exchange,
Inc.
12. Acceptance of Securities Guarantee and Indenture.
Each Holder of Trust Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Trust Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
13. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or similar rights to
subscribe for any additional securities.
14. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Trust Preferred
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.
14
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This
Preferred 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 Preferred
Security is exchangeable for Trust Preferred 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 Preferred
Security (other than a transfer of this Preferred 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 Preferred 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
Preferred 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 Trust Preferred Securities: _____
CUSIP NO.
Certificate Evidencing Trust Preferred Securities
of
Bay View Capital I
[$^/^%] Trust Preferred Securities (liquidation amount $^ per Preferred
Security)
Bay View Capital I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ____________ (the
"Holder") is the registered owner of Trust Preferred Securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [$^/^%] [Convertible] Trust Preferred Securities, [Series ^]
(liquidation amount $^ per Preferred Security) (the "Trust Preferred
Securities'). The Trust Preferred 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. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred 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 ^, 199^, as the same may be
amended from time to time (the "Declaration"), including the designation of the
terms of the Trust Preferred Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in
A-1-1
<PAGE>
the Declaration. The Holder is entitled to the benefits of the Trust Preferred
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Trust Preferred 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 is 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 Trust Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon has
been properly executed, these Trust Preferred 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 _______.
Bay View Capital I
By:
-------------------------
Name:
Title: Regular Trustee
A-1-2
<PAGE>
[FORM OF CERTIFICATE OF AUTHENTICATION]
INSTITUTIONAL TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Security Certificates referred to in the
within-mentioned Declaration.
Dated:____________________
^,
as Institutional Trustee or as Authenticating Agent
By: By:
------------------------ ---------------------------
A-1-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a rate
per annum of ^% (the "Coupon Rate") of the stated liquidation amount of $^ per
Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional 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
Institutional Trustee and to the extent the Institutional 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 Trust Preferred
Securities will be cumulative, will accrue from ^, 199^ and will be payable
quarterly in arrears, on ^,^,^ and ^ of each year, commencing on ^, 199^, 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 Trust Preferred Securities shall be redeemable as provided in the
Declaration.
[The Trust Preferred Securities shall be convertible into shares of Bay
View Common Stock, through (i) the exchange of Trust Preferred Securities for a
portion of the Debentures and (ii) the immediate conversion of such Debentures
into Bay View Common Stock, in the manner and according to the terms set forth
in the Declaration.]
A-1-4
<PAGE>
[CONVERSION REQUEST
To: ^, as Institutional Trustee of Bay View Capital I
The undersigned owner of these Trust Preferred Securities hereby
irrevocably exercises the option to convert these Trust Preferred Securities, or
the portion below designated, into Common Stock of Bay View Capital Corporation
(the "Bay View Common Stock") in accordance with the terms of the Amended and
Restated Declaration of Trust, dated as of ^, 199^ (as amended from time to
time, the "Declaration"), by ^, ^ and ^, as Regular Trustees, ^ , as Delaware
Trustee, ^, as Institutional Trustee, Bay View Capital Corporation, as Sponsor,
and by the Holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to the Declaration. Pursuant to the aforementioned
exercise of the option to convert these Trust Preferred Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Declaration) to (i) exchange such Trust Preferred Securities for a portion of
the Debentures (as that term is defined in the Declaration) held by the Trust
(at the rate of exchange specified in the terms of the Trust Preferred
Securities set forth as Annex I to the Declaration) and (ii) immediately convert
such Debentures on behalf of the undersigned, into Bay View Common Stock (at the
conversion rate specified in the terms of the Trust Preferred Securities set
forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: _________________, ______
in whole in part
Number of Trust Preferred Securities to be Converted:
----------------------------------------------------
A-1-5
<PAGE>
If a name or names other than the undersigned, please indicate in the
spaces below the name or names in which the shares of Bay View Common Stock are
to be issued, along with the address or addresses of such Person or Persons
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
-----------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address, Including Zip Code, and Social
Security or Other Identifying Number
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
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 Conversion Agent, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.]
A-1-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
A-1-7
<PAGE>
agent to transfer this Preferred 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 Preferred 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 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.
A-1-8
<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 $^ per Common Security)
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE LIMITED CIRCUMSTANCES AS
DESCRIBED IN THE DECLARATION (AS DEFINED BELOW):
Bay View Capital I, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the ____%
[$^/^%] Common Securities (liquidation amount $^ per Common Security) (the
"Common Securities"). The Common 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. 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 ^, 199^, 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 is 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.
A-2-1
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day of
^, 199^.
Bay View Capital I
By:
------------------------
Name:
Title: Regular Trustee
A-2-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate per
annum of ^% (the "Coupon Rate") of the stated liquidation amount of $50 per
Common Security, such rate being the rate of interest payable on the Debentures
to be held by the Institutional 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 Institutional Trustee and to
the extent the Institutional 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 ^, 199^ and will be payable quarterly in
arrears, on ^, ^, ^ and ^ of each year, commencing on ^, 199^, 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.
[The Common Securities shall be convertible into shares of Bay View Common
Stock, through (i) the exchange of Common Securities for a portion of the
Debentures and (ii) the immediate conversion of such Debentures into Bay View
Common Stock, in the manner and according to the terms set forth in the
Declaration.]
A-2-3
<PAGE>
[CONVERSION REQUEST
To: ^
as Institutional Trustee of
Bay View Capital I
The undersigned owner of these Common Securities hereby irrevocably
exercises the option to convert these Common Securities, or the portion below
designated, into Common Stock of Bay View Capital Corporation (the "Bay View
Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust dated as of ^, 199^ (as amended from time to time, the
"Declaration"), by ^, ^ and ^, as Regular Trustees, ^, as Delaware Trustee, ^,
as Institutional Trustee, Bay View Capital Corporation, as Sponsor, and by the
Holders, from time to time, of undivided beneficial interests in the Trust to be
issued pursuant to the Declaration. Pursuant to the aforementioned exercise of
the option to convert these Common Securities, the undersigned hereby directs
the Conversion Agent (as that term is defined in the Declaration) to (i)
exchange such Common Securities for a portion of the Debentures (as that term is
defined in the Declaration) held by the Trust (at the rate of exchange specified
in the terms of the Common Securities set forth as Annex I to the Declaration)
and (ii) immediately convert such Debentures on behalf of the undersigned, into
Bay View Common Stock (at the conversion rate specified in the terms of the
Common Securities set forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: _________________, ______
in whole in part
Number of Common Securities to be Converted:
-------------------------------------------
A-2-4
<PAGE>
If a name or names other than the undersigned, please indicate in the
spaces below the name or names in which the shares of Bay View Common Stock are
to be issued, along with the address or addresses of such Person or Persons
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
-----------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address, Including Zip Code, and Social
Security or Other Identifying Number
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
- --------------------------------- -----------------------------------
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 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.]
A-2-5
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
A-2-6
<PAGE>
agent to transfer this Common 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 Common
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 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.
A-2-7
<PAGE>
EXHIBIT 4(o)
================================================================================
BAY VIEW CAPITAL II
______________
AMENDED AND RESTATED DECLARATION
OF TRUST
______________
Dated as of , 199
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
INTERPRETATION AND DEFINITION
Section 1.1 Definitions......................................................... 2
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.................................... 9
Section 2.2 List of Holders of Securities....................................... 9
Section 2.3 Reports by the Institutional Trustee................................ 9
Section 2.4 Periodic Reports to Institutional Trustee........................... 10
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
Section 3.1 Name................................................................ 12
Section 3.2 Office.............................................................. 12
Section 3.3 Purpose............................................................. 13
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....................................... 17
Section 3.9 Certain Duties and Responsibilities of the Institutional Trustee.... 19
Section 3.10 Certain Rights of Institutional Trustee............................ 20
Section 3.11 Delaware Trustee................................................... 22
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
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities............................. 25
Section 4.2 Responsibilities of the Sponsor..................................... 25
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees.................................................. 26
Section 5.2 Delaware Trustee.................................................... 26
Section 5.3 Institutional Trustee; Eligibility.................................. 26
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
Section 5.10 Meetings........................................................... 29
Section 5.11 Delegation of Power................................................ 30
Section 5.12 Merger, Conversion, Consolidation or Succession to Business........ 30
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions....................................................... 30
ARTICLE VII
ISSUANCE OF SECURITIES
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 [and Conversion Agent]................................. 32
ARTICLE VIII
TERMINATION OF TRUST
Section 8.1 Termination of Trust................................................ 33
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE IX
TRANSFER OF INTERESTS
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 Trust Preferred 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
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
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
Section 12.1 Amendments......................................................... 44
Section 12.2 Meetings of the Holders of Securities; Action by Written Consent... 46
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of Institutional Trustee............ 47
Section 13.2 Representations and Warranties of Delaware Trustee................. 48
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices............................................................ 48
Section 14.2 Governing Law...................................................... 50
Section 14.3 Intention of the Parties........................................... 50
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 SECURITIES................................................ I-1
EXHIBIT A-1 FORM OF TRUST PREFERRED SECURITY CERTIFICATE....................... Al-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE................................ A2-l
</TABLE>
iv
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
SECTION OF TRUST INDENTURE ACT SECTION OF
of 1939, AS AMENDED DECLARATION
- ------------------------------ -----------
<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
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 the Declaration and
shall not affect the interpretation of any of its terms or provisions.
v
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BAY VIEW CAPITAL II
^, 199^
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")* dated and
effective as of ^, 199^, 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 II
(the "Trust"), a trust under the Business Trust Act (as defined herein) pursuant
to a Trust Agreement, dated as of September ^, 1998 (the "Original Declaration")
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on September ^, 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.
_________________________
* Unless otherwise indicated or unless the context otherwise requires, (i)
bracketed language relating to conversion of the Trust Preferred Securities
and the Common Securities will be included only if the Trust Preferred
Securities and the Common Securities are convertible into Bay View Common
Stock or other securities; and (ii) all references to specific sections of
the Base Indenture and the Supplemental Indenture are subject to change. In
addition, if the Trust Preferred Securities and the Common Securities are
convertible into securities other than Bay View Common Stock, all
references to Bay View Common Stock will be appropriately modified.
<PAGE>
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;
(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.
"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, Registrar [or Conversion Agent].
-----
"Authorized Officer" of a Person means any Person that is authorized to
------------------
bind such Person.
"Base Indenture" means the ^ Indenture dated as of ^, 199^, between the
--------------
Company and the Debenture 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.
2
<PAGE>
"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.
"Certificate" means a Common Security Certificate or a Trust Preferred
-----------
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
Trust Preferred 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 Trust Preferred 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 ^, 199^.
------------
["Bay View 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. However,
subject to the provisions of Article [VII] of the Supplemental Indenture, shares
issuable on conversion of the Convertible Debentures shall include only shares
of the class designated as the common stock of the Company on the date of the
Supplemental Indenture or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have 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 are
not subject to redemption by the Company; provided, however, that if at any time
there shall be more than one such resulting class, the shares of each such class
then so issuable shall be substantially in the proportion which the total number
of shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.]
"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 ^, 199^ 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
3
<PAGE>
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.
["Conversion Agent" has the meaning specified in Section 7.4.]
----------------
["Convertible Debentures" has the same meaning as the term "Debentures."]
----------------------
"Corporate Trust Office" means either (A) the principal corporate trust
----------------------
office of the Institutional 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 ^, Attention: ^, or (B) for
purposes of Section 7.4 hereof (and any similar provisions of this Declaration
concerning the office or agency where Securities may be presented or surrendered
for payment, surrendered for registration of transfer or exchange[, or
surrendered for conversion]), "Corporate Trust Office" means the principal
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York at which at any particular time its corporate trust business shall be
administered in the City of New York, which office at the date of the original
execution of this Declaration is located at c/o ^, Attn: ^; provided that, for
purposes of any request, demand, authorization, direction, notice, consent,
waiver or act of Holders or other document or notice provided or permitted by
this Declaration to be made upon, given or furnished to, or filed with, the
Institutional Trustee. "Corporate Trust Office" means any office referred to in
clause (A) or (B) of this paragraph.
"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.
"Debenture Trustee" means ^, as trustee under the Indenture until a
-----------------
successor is appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the ^% [Convertible [Subordinated/Junior Subordinated]]
----------
Debentures due ^, 20^ to be issued by the Company pursuant to the Indenture; a
form of the certificate evidencing the Debentures appears as Exhibit ^ 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 Trust Preferred Security Certificates" has the meaning set
------------------------------------------------
forth in Section 9.4.
4
<PAGE>
"Direct Action" has the meaning specified in Section 6(b) of Annex I
-------------
hereto.
"Dissolution Tax Opinion" has the meaning set forth in Section 4(c) of
-----------------------
Annex I hereto.
"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 an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"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.
"Institutional Trustee" means the Trustee meeting the eligibility
---------------------
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
-----------------------------
3.8(c).
"Legal Action" has the meaning set forth in Section 3.6(g).
------------
5
<PAGE>
"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 Trust Preferred 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 Trust Preferred
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 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.
"No Recognition Opinion" has the meaning set forth in Section 4 of Annex I
----------------------
hereto.
"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 conform to definition in Underwriting Agreement] (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.
"Quorum" means a majority of the Regular Trustees or, if there are only two
------
Regular Trustees, both of them.
6
<PAGE>
"Redemption Tax Opinion" has the meaning set forth in Section 4 of Annex I
----------------------
hereto.
"Registrar" has the meaning set forth in Section 7.4 hereof.
---------
"Regular Trustee" has the meaning set forth in Section 5.1(b).
---------------
"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 Institutional Trustee, any
-------------------
officer within the Corporate Trust Office of the Institutional Trustee,
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 Institutional 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 Trust Preferred
----------
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 Trust
---------------------
Preferred 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 Institutional 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
----------------------
^, 199^ between the Company and the Debenture Trustee pursuant to which the
Debentures are to be issued.
"Tax Event" has the meaning set forth in Section 4 of Annex I hereto.
---------
7
<PAGE>
"10% in liquidation amount of the Securities" means, except as provided in
-------------------------------------------
the terms of the Trust Preferred 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 Trust Preferred Securities 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 II, 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.
"Trust Preferred Securities Guarantee" means the Trust Preferred Securities
------------------------------------
Guarantee Agreement dated as of ^, 199^, between the Sponsor and ^, as guarantee
trustee.
"Trust Preferred Security" has the meaning specified in Section 7.1.
------------------------
"Trust Preferred 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).
"Trust Preferred Security Certificate" means a certificate representing a
------------------------------------
Trust Preferred Security substantially in the form of Exhibit A-1.
"Underwriting Agreement" means the Underwriting Agreement dated ^, 199^,
----------------------
among the Company, the Trust and the underwriters named therein for the offering
and sale of Trust Preferred Securities.
8
<PAGE>
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.
(b) The Institutional 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 Institutional Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Institutional
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 Institutional 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 Institutional Trustee; provided, however, that so long as the
Institutional Trustee or an Affiliate of the Institutional Trustee is the
Registrar no such list shall be required to be furnished. The Institutional
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
Institutional Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Institutional 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 Institutional Trustee.
------------------------------------
Within 60 days after May 15 of each year, the Institutional Trustee shall
provide to the Holders of the Trust Preferred 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
9
<PAGE>
Indenture Act. The Institutional Trustee shall also comply with the requirements
of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to Institutional Trustee.
-----------------------------------------
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such documents, reports and information as
may be 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 Institutional
Trustee is for informational purposes only and the Institutional 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
Institutional 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 Institutional 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 Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
Securities, waive any past Event of Default in respect of the Trust Preferred
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
the 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 the Declaration may only be waived by the vote of,
in the case of (x) above, Holders of Trust Preferred Securities
representing at least such specified percentage of the aggregate
liquidation amount of the outstanding Trust Preferred Securities or, in the
case of (y) above, each Holder of outstanding Trust Preferred 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 Trust
Preferred 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
10
<PAGE>
respect to the Trust Preferred Securities or impair any right consequent there
on. Any waiver by the Holders of the Trust Preferred Securities of an Event of
Default with respect to the Trust Preferred 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 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
the Declaration as provided below in this Section 2.6(b), the Event of
Default under the 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 the Declaration as provided below in this Section 2.6(b), the
Event of Default under the 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
Trust Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default with respect to the Trust Preferred Securities have
been so cured, waived or otherwise eliminated, the Institutional Trust will be
deemed to be acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities will have the
right to direct the Institutional 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 Institutional Trustee
at the direction of the Holders of the Trust Preferred Securities constitutes a
waiver of the
11
<PAGE>
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.
Section 2.7 Event of Default; Notice.
------------------------
(a) The Institutional Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults with respect to the
Securities actually known to a Responsible Officer of the Institutional Trustee,
unless such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to be an
Indenture Event of Default with respect to the Debentures, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures, the
Institutional Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Institutional Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Institutional 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 (A) [Section
501(1)] of the Base Indenture, as amended and restated by [Section 2.9(c)]
of the Supplemental Indenture, or (B) [Section 501(2)] of the Base
Indenture; or
(ii) any default with respect to the Debentures as to which the
Institutional Trustee shall have received written notice or of which a
Responsible Officer of the Institutional Trustee charged with the
administration of the Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
Section 3.1 Name.
----
The Trust is named "Bay View Capital II" 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
12
<PAGE>
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 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 Institutional 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 Institutional 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
Institutional 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 Trust Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Trust Preferred 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 Trust
Preferred 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 Trust Preferred
Securities, at the direction of the Sponsor, to:
13
<PAGE>
(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 Trust Preferred 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 part of the Trust Preferred Securities in any State in which the
Sponsor has determined to qualify or register such Trust Preferred
Securities for sale;
(iii) file an application, prepared by the Sponsor, to the New York
Stock Exchange, Inc. or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Trust Preferred
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 Trust Preferred Securities and, if deemed necessary or
appropriate by the Regular Trustees, the guarantee of the Sponsor in
respect of the Trust Preferred 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 Trust Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the Trust
Preferred 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 Institutional Trustee for the benefit of the Holders of the
Trust Preferred Securities and the Holders of Common Securities;
(d) to give the Sponsor and the Institutional 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
Institutional 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 Trust Preferred
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 Institutional Trustee
has the exclusive power to bring such Legal Action;
14
<PAGE>
(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;
(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 Institutional 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 Trust Preferred
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
15
<PAGE>
(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.
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 Institutional 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 Institutional
Trustee) shall cause the Trust not 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 Institutional Trustee) shall cause the Trust not
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
Debenture 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.
16
<PAGE>
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 Institutional Trustee (in its capacity as such) in trust for
the benefit of the Holders of the Securities. The right, title and interest of
the Institutional Trustee to the Debentures shall vest automatically in each
Person who may hereafter be appointed as Institutional 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 Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee). [The Trust
and the Institutional Trustee shall not convert any Debentures held by either of
them except pursuant to a notice of conversion delivered to the Conversion Agent
by a Holder of Trust Securities.]
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of and under the
exclusive control of the Institutional 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 Institutional Trustee, deposit such funds
into the Institutional Trustee Account and make payments to the Holders of
the Trust Preferred Securities and Holders of the Common Securities from
the Institutional Trustee Account in accordance with Section 6.1. Funds in
the Institutional Trustee Account shall be held uninvested until disbursed
in accordance with this Declaration. The Institutional Trustee Account
shall be an account that is maintained with a banking institution (which
may be the Institutional Trustee) the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the Trust
Preferred 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 Trust Preferred 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 Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
17
<PAGE>
(e) The Institutional 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 Institutional Trustee has actual knowledge or the Institutional Trustee's
duties and obligations under this Declaration or the Trust Indenture Act. The
Holders of a Majority in liquidation amount of the Trust Preferred Securities
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee or to direct
the exercise of any trust or power conferred upon the Institutional Trustee
under the Declaration, including the right to direct the Institutional Trustee
to exercise the remedies available to it as a holder of the Debentures. If the
Institutional Trustee fails to enforce its rights under the Debentures, a Holder
of Trust Preferred Securities, to the fullest extent permitted by law, may
institute a legal proceeding directly against the Company to enforce the
Institutional Trustee's rights under the Debentures without first instituting
any legal proceeding against the Institutional 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, premium, if any, or interest on the Debentures on the date such principal,
premium or interest, as the case may be, is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Trust Preferred Securities
may directly institute a proceeding for enforcement of payment to such Holder
directly of the principal of, premium, if any, or interest on the Debentures
having a principal amount equal to the aggregate liquidation amount of the Trust
Preferred 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, premium, if any, or interest on such Debentures, and the Company shall be
subrogated to the rights of such Holder of Trust Preferred Securities to the
extent of any payment made by the Company to such Holder of Trust Preferred
Securities in such Direct Action. Except as provided in the preceding sentences
of this paragraph, the Holders of Trust Preferred Securities shall have no right
or power to exercise directly any other remedy available to the holders of the
Debentures.
(f) The Institutional 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 Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7.
(g) The Institutional 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 Event of Default actually known to a Responsible Officer of
the Institutional Trustee occurs and is continuing, the Institutional 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.
(h) The Institutional 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 Institutional Trustee at
18
<PAGE>
any time and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Institutional Trustee.
(i) Subject to this Section 3.8, the Institutional Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Institutional 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 Institutional 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 Institutional
--------------------------------------------------------
Trustee.
- -------
(a) The Institutional 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 Institutional 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 Institutional Trustee has actual
knowledge, the Institutional 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.
(b) No provision of this Declaration shall be construed to relieve the
Institutional 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 Institutional Trustee
shall be determined solely by the express provisions of this
Declaration and the Institutional 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 Institutional Trustee;
and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional 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
Institutional 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 Institutional Trustee, the Institutional Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Declaration;
19
<PAGE>
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional 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 Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional 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 Institutional Trustee against such risk or
liability is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Institutional Trustee Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar property for
its own account, subject to the protections and limitations on liability
afforded to the Institutional Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Institutional 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 Institutional 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 Institutional Trustee need not be
segregated from other funds held by it except in relation to the
Institutional Trustee Account maintained by the Institutional Trustee
pursuant to Section 3.8(c)(i) and except to the extent otherwise required
by law; and
(viii) the Institutional 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 Institutional
Trustee be liable for any default or misconduct of the Regular Trustees or
the Sponsor.
Section 3.10 Certain Rights of Institutional Trustee.
---------------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument,
20
<PAGE>
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
Institutional Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Institutional 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 Institutional 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 Institutional 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 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 Institutional 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 Institutional 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 Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional 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 Institutional
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 Institutional Trustee to take any
action it is empowered to take under this Declaration following an Event of
Default or (b) relieve the Institutional 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 Institutional 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 Institutional Trustee in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
21
<PAGE>
(viii) the Institutional 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 Institutional
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 Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional 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 Institutional
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 Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive written
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Institutional 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 Institutional Trustee under
the terms of the Securities in 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
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration; and
(xii) the Institutional 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 Institutional 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 Institutional 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 Institutional
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
22
<PAGE>
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.
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)(vii)
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 Institutional
Trustee, consolidate, amalgamate, merge with or into, 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 Trust Preferred Securities other
securities having substantially the same terms as the Trust Preferred
Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Trust
23
<PAGE>
Preferred 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 Institutional Trustee as the holder of
the Debentures;
(iii) the Trust Preferred 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 Trust Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Trust Preferred 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);
(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 any other Person or permit any
other Person to consolidate, amalgamate,
24
<PAGE>
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 Trust Preferred
Securities are sold.
Section 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Trust Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(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 Trust
Preferred Securities and the Trust Preferred 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 Trust Preferred Securities and the Trust
Preferred 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 New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq National Market for listing upon notice of issuance of
any Trust Preferred Securities and, if deemed necessary or advisable by the
Sponsor, the Trust Preferred 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 Trust Preferred
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 Trust Preferred Securities and, if deemed necessary or advisable by the
Sponsor, the Trust Preferred 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 Trust Preferred Securities.
25
<PAGE>
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees.
------------------
The number of Trustees initially shall be five (5), 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 Institutional Trustee for so long as
this Declaration is 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 Institutional Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Institutional Trustee shall also be the Delaware
Trustee and Section 3.11 shall have no application.
Section 5.3 Institutional Trustee; Eligibility.
----------------------------------
(a) There shall at all times be one Trustee which shall act as
Institutional 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 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 $50,000,000, 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
26
<PAGE>
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 Institutional Trustee shall cease to be eligible to
so act under Section 5.3(a), the Institutional Trustee shall immediately resign
in the manner and with the effect set forth in Section 5.7(c).
(c) If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Institutional 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 Trust Preferred 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.
(e) The initial Institutional Trustee shall be: ^.
Section 5.4 Certain Qualifications of Regular Trustees and Delaware
-------------------------------------------------------
Trustee Generally.
- -----------------
Each Regular Trustee and the Delaware Trustee (unless the Institutional
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:
^
^
^
(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: and
(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
27
<PAGE>
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: ^.
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 Institutional Trustee shall not be
removed in accordance with Section 5.7(a) until a successor Institutional
Trustee (a "Successor Institutional Trustee") has been an appointed and has
accepted such appointment by written instrument executed by such Successor
Institutional 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 Institutional
Trustee shall be effective:
(A) Until a Successor Institutional Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust, the
Sponsor and the resigning Institutional 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
28
<PAGE>
(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 Institutional Trustee or Successor Delaware
Trustee, as the case may be, if the Institutional Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this Section
5.7.
(e) If no Successor Institutional 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 Institutional Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Institutional 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 Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
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
29
<PAGE>
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
(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 Institutional 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 Institutional 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 Institutional Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Institutional 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.
30
<PAGE>
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 Trust
Preferred 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) and Additional Interest (as defined in the Indenture)),
premium and/or principal on the Debentures held by the Institutional Trustee
(the amount of any such payment being a "Payment Amount"), the Institutional
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
[convertible] Trust Preferred Securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (the "Trust Preferred Securities") and one class of [convertible] 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 in the assets of the
Trust other than the Trust Preferred Securities and the Common Securities.
(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 Trust Preferred Securities as provided in this
Declaration, the Trust Preferred 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 Trust Preferred
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
31
<PAGE>
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 the Declaration any such person was not such a
Regular Trustee.
(b) One Regular Trustee shall sign the Trust Preferred 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 Trust Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Institutional Trustee. The
signature shall be conclusive evidence that the Trust Preferred Security has
been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Institutional Trustee shall authenticate the Trust Preferred Securities for
original issue.
The Institutional Trustee may appoint, with the consent of the Regular
Trustees, an authenticating agent acceptable to the Trust to authenticate Trust
Preferred Securities. An authenticating agent may authenticate Trust Preferred
Securities whenever the Institutional Trustee may do so. Each reference in this
Declaration to authentication by the Institutional Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Institutional Trustee to deal with the Company or an Affiliate of the Company.
Section 7.3 Form and Dating.
---------------
The Trust Preferred Securities and the Institutional Trustee's certificate
of authentication shall be substantially in the form of Exhibit A-1 and the
Common Securities shall be substantially in the 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 Institutional Trustee in writing. Each Trust
Preferred 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 Institutional 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 [and Conversion Agent].
-----------------------------------
In the event that the Trust Preferred 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 Trust Preferred Securities may
be presented for payment ("Paying Agent") and a Registrar (as defined below)
[and a Conversion Agent (as defined below)]. The Trust shall
32
<PAGE>
maintain a Paying Agent[, an office or agency where Securities may be presented
for conversion ("Conversion 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 Trust Preferred Securities and of the
transfer and exchange thereof. The Trust may appoint the Paying Agent, Registrar
[and the Conversion Agent] and may appoint one or more additional paying agents,
one or more additional registrars [and one or more additional conversion agents]
in such other locations as it shall determine. The term "Paying Agent" includes
any additional paying agent, the term "Registrar" includes any additional
registrar[, and the term "Conversion Agent" includes any additional conversion
agent]. The Trust may change any Paying Agent, Registrar or [Conversion Agent]
without prior notice to any Holder. The Trust shall notify the Institutional
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, Registrar [or Conversion Agent], the Institutional Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent, Registrar or
[Conversion Agent]. The Trust shall act as Paying Agent, Registrar and
[Conversion Agent] for the Common Securities. The Paying Agent, Registrar and
[Conversion Agent] shall be entitled to the rights and protections extended to
the Institutional Trustee when acting in such capacity.
The Trust initially appoints the Institutional Trustee, acting through its
Corporate Trust Office in The City of New York, as [Conversion Agent], Registrar
and Paying Agent for the Trust Preferred Securities.
ARTICLE VIII
TERMINATION OF TRUST
Section 8.1 Termination of Trust.
--------------------
(a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; upon receipt by the Trust of the
consent of the Holders of at least a Majority in liquidation amount of the
outstanding Securities voting together as a single class to dissolve the
Trust and file a certificate of cancellation with respect thereto, or 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;
(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;
33
<PAGE>
(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 Institutional Trustee shall have been
distributed to the Holders of Securities in exchange for all of the
Securities;
[(vi) upon the conversion of all outstanding Trust Preferred
Securities into Bay View Common Stock or other cash, securities or
property, as the case may be;]
(vii) the expiration of the term of the Trust on ^; or
(viii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor.
(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 Trust Preferred Securities are presented to a Registrar with a
request to register the transfer thereof or to exchange them for an equal number
of Trust Preferred 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
Institutional Trustee shall authenticate certificates for the Trust Preferred
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
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, Trust Preferred 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
34
<PAGE>
(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 for conversion] 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 [or conversion], shall
be canceled by the Regular Trustees (in the case of Common Securities) or by the
Institutional Trustee (in the case of Trust Preferred 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 [or
Conversion Agent] in order to receive payments due upon redemption [or in order
to convert such Securities, respectively].
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 Trust Preferred Securities,
the Trust Preferred Securities Certificates, on original issuance, will be
issued in the form of one or more fully registered, global Trust Preferred
Security Certificates (each a "Global Certificate"), to be
35
<PAGE>
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 Trust
Preferred Security Beneficial Owner will receive a definitive Trust Preferred
Security Certificate representing such Trust Preferred Security Beneficial
Owner's interests in such Global Certificates, except as provided in Section
9.7. Unless and until definitive, fully registered Trust Preferred Security
Certificates (the "Definitive Trust Preferred Security Certificates") have been
issued to the Trust Preferred 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 Trust Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the Trust
Preferred 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 Trust Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Trust Preferred 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
Trust Preferred Securities have voted on any matter provided for in this
Declaration, so long as Definitive Trust Preferred 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 Trust Preferred Security
Beneficial Owners' votes or assigning the right to vote on any matter to any
other Persons either in whole or in part.
Section 9.5 Notices to Clearing Agency.
--------------------------
Whenever a notice or other communication to the Trust Preferred Security
Holders is required under this Declaration, unless and until Definitive Trust
Preferred Security Certificates shall have been issued to the Trust Preferred
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
Trust Preferred Security Holders to the Clearing Agency, and shall have no
notice obligations to the Trust Preferred 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 Trust Preferred Securities, the Regular Trustees
may, in their sole discretion, appoint a successor Clearing Agency with respect
to such Trust Preferred Securities.
36
<PAGE>
Section 9.7 Definitive Trust Preferred Security Certificates.
------------------------------------------------
If:
(a) 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
(b) the Regular Trustees elect, in their sole discretion but after
consultation with the Sponsor, to terminate the book entry system through the
Clearing Agency with respect to the Trust Preferred Securities, and any Regular
Trustee executes and delivers to the Institutional Trustee an order to the
effect that the Global Certificates will be exchangeable for Definitive Trust
Preferred Securities Certificates; or
(c) an Event of Default has occurred and is continuing,
then:
(d) Definitive Trust Preferred Security Certificates shall be prepared by
------------------------
the Regular Trustees on behalf of the Trust with respect to such Trust Preferred
Securities; and
(e) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Trust Preferred Security Certificates to be delivered to Trust
------------------------ -----
Preferred 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 Trust Preferred 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
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 Trust Preferred 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 Trust Preferred Securities, the Institutional
Trustee, and if the Regular Trustees and, in the case of Trust Preferred
Securities, the Institutional Trustee shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Institutional Trustee and the Regular
Trustees such security or indemnity as may be required by them to keep each of
them and the Sponsor
37
<PAGE>
harmless, then, in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, any Regular Trustee on behalf of the Trust
shall execute and deliver or, in the case of Trust Preferred Securities, any
Regular Trustee shall execute and the Institutional 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
Institutional 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 Institutional 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.
(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 Trust Preferred 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
38
<PAGE>
the case of the Institutional 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 Institutional 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 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
39
<PAGE>
(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
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
40
<PAGE>
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 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 Trust Preferred 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 Trust Preferred 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,
41
<PAGE>
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 Institutional Trustee, (ii) the Delaware Trustee, (iii) the Paying
Agent, [(iv) the Conversion Agent,] (v) any Affiliate of the Institutional
Trustee, and the Delaware Trustee, and (vi) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee, the Paying Agent, [the
Conversion Agent] and the Delaware Trustee (each of the Persons in (i) through
(vi) 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 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 10.4(b) shall survive the satisfaction
and discharge of this Declaration or the resignation or removal of the Delaware
Trustee or the Institutional Trustee, as the case may be.
Section 10.5 Outside Business.
----------------
Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional
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
Institutional 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 Institutional
Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act
42
<PAGE>
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.
(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 Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole signatories
for
43
<PAGE>
such accounts shall be designated by any of the Regular Trustees; provided,
however, that the Institutional Trustee shall designate the signatories for the
Institutional 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.
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 Institutional Trustee, the Institutional 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:
(i) unless, in the case of any proposed amendment, the Institutional
Trustee shall have first received 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);
44
<PAGE>
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee shall have first received:
(A) 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
(B) 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
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified for purposes of United
States federal income taxation as other than a grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(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) (c) and this Section 12.1 shall not be amended without the consent of
all of the Holders of the Securities;
(e) Article 4 shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities;
(f) the rights of the Holders of the Common Securities under Article 5 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 to:
(i) cure any ambiguity;
(ii) 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;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
45
<PAGE>
(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; and
(v) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the
Holders.
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 Trust Preferred 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 10% 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:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 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 Trust Preferred 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;
46
<PAGE>
(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 Trust Preferred
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.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL
TRUSTEE AND DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of Institutional Trustee.
-------------------------------------------------------
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants, as applicable, to
the Trust and the Sponsor at the time of the Successor Institutional Trustee's
acceptance of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a national banking association 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, the Declaration;
(b) the execution, delivery and performance by the Institutional Trustee of
the Declaration has been duly authorized by all necessary corporate action on
the part of the Institutional Trustee. The Declaration has been duly executed
and delivered by the Institutional Trustee, and it constitutes a legal, valid
and binding obligation of the Institutional 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
47
<PAGE>
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 the Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional 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 Institutional Trustee of the 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, the
Declaration.
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and the Declaration. The Declaration under
Delaware law constitutes a 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 the 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:
48
<PAGE>
(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 II
c/o Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Attention: Chief Financial Officer
(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):
^
^
^
Attention: ^
(c) if given to the Institutional Trustee, at the mailing address set forth
below (or such other address as the Institutional Trustee may give notice of to
the Holders of the Securities):
^
^
^
Attention: ^
(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):
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.
49
<PAGE>
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.
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.
50
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
---------------------------------
^, as Regular Trustee
---------------------------------
^, as Regular Trustee
---------------------------------
^, as Regular Trustee
^,
as Delaware Trustee
By:
------------------------------
Name:
Title:
^,
as Institutional Trustee
By:
------------------------------
Name:
Title:
BAY VIEW CAPITAL CORPORATION,
as Sponsor
By:
------------------------------
Name:
Title:
51
<PAGE>
ANNEX I
TERMS OF
[$^/^%] TRUST PREFERRED SECURITIES
[$^/^%] COMMON SECURITIES
Pursuant to Section 7. 1 of the Amended and Restated Declaration of Trust,
dated as of ^, 199^ (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred 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) TRUST PREFERRED SECURITIES. ^ Trust Preferred Securities of the
Trust with an aggregate liquidation amount with respect to the assets of the
Trust of $^, and a liquidation amount with respect to the assets of $^ per
Preferred Security, are hereby designated for the purposes of identification
only as "[$^/^%] [Convertible] Trust Preferred Securities[, Series ^]" (the
"Trust Preferred Securities"). The Preferred Security Certificates evidencing
the Trust Preferred 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 Trust Preferred Securities are
listed.
(b) COMMON SECURITIES. ^Common Securities of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of $^, and a
liquidation amount with respect to the assets of the Trust of $^ per Common
Security, are hereby designated for the purposes of identification only as
"[$^/^%] 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 ____% (the "Coupon Rate") of the stated liquidation amount of $^ per
Security, such rate being the rate of interest payable on the Debentures to be
held by the Institutional 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 Institutional Trustee and to the extent
the Institutional 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
1
<PAGE>
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.
(b) Distributions on the Securities will be cumulative, will accumulate
from ^, 199^, and will be payable quarterly in arrears, on ^, ^, and ^ of each
year, commencing on ^,^ except as otherwise described below. So long as the
Sponsor shall not be in default in the payment of interest on the Debentures,
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 Trust Preferred 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 Trust Preferred Securities
will be made as described under the heading ["Description of the Trust Preferred
Securities -- Book-Entry Only Issuance -- The Depository Trust Company"] in the
Prospectus Supplement dated ^, 199^, to the Base Prospectus dated ^, 199^
(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 Trust
Preferred Securities. If the Trust Preferred Securities shall not continue to
remain in book-entry only form, the relevant record dates for the Trust
Preferred Securities shall 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 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
2
<PAGE>
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 of an election by the Holder to convert its Securities
through the Conversion Agent into Bay View Common Stock pursuant to the terms of
the Securities as set forth in this Annex I to the Declaration, no payment,
allowance or adjustment shall be made with respect to accumulated and unpaid
Distributions on such Securities, or be required to be made; provided, however,
that if a Security is surrendered for conversion after the close of business on
any regular record date for payment of a Distribution and before the opening of
business on the corresponding Distribution payment date, then, notwithstanding
such conversion, the Distribution payable on such Distribution payment date will
be paid in cash to the person in whose name the Security is registered at the
close of business on such record date, and (other than a Security or a portion
of a Security called for redemption on a redemption date occurring after such
record date and on or prior to such Distribution payment date) when so
surrendered for conversion, the Security must be accompanied by payment of an
amount equal to the Distribution payable on such Distribution payment date.]
(e) 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 $^ 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
3
<PAGE>
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.
(b) If fewer than all the outstanding Securities are to be so redeemed, the
Common Securities and the Trust Preferred Securities will be redeemed Pro Rata
and the Trust Preferred Securities to be redeemed will be as described in
Section 4(g) below.
(c) If, at any time, a Tax Event or an Investment Company Event (each, as
defined below, a "Special Event") shall occur and be continuing, the Regular
Trustees may with the consent of the Sponsor, except in certain limited
circumstances in relation to a Tax Event described in this Section 4(c),
dissolve the Trust and, after satisfaction of creditors, cause Debentures held
by the Institutional 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 such dissolution and distribution shall be conditioned on (i) the Trustees'
receipt of an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may rely
on published revenue rulings of the Internal Revenue Service, to the effect that
the Holders of the Securities will not recognize any gain or loss for United
States federal income tax purposes as a result of the dissolution of the Trust
and the distribution of Debentures, (ii) in the case of a Tax Event, the Sponsor
or the Trust being unable to avoid, within the 90 Day Period, the Tax Event by
taking some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure that has no adverse effect on the
Trust, the Sponsor, or the Holders of the Securities ("Ministerial Action"), and
(iii) the Sponsor's prior written consent to such dissolution and distribution.
If in the event of a Tax Event (i) after receipt of a Dissolution Tax
Opinion (as defined hereinafter) by the Regular Trustees, the Sponsor has
received an opinion (a "Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as a result of a Tax
Event, there is more than an insubstantial risk that the Sponsor would be
precluded from deducting the interest on the Debentures for United States
federal income tax purposes even after the Debentures were distributed to the
Holders of Securities in liquidation of such Holders' interests in the Trust as
described in this Section 4(c), or (ii) the Trustees shall have been informed by
such tax counsel that a No Recognition Opinion cannot be delivered to the Trust,
the Sponsor shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Debentures in whole or in part, at a
redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest thereon, for cash within 90 days following the occurrence of
such Tax Event. Following such redemption, Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if at any time there is available to the Sponsor
or the Trust the opportunity to
4
<PAGE>
eliminate, within such 90 Day Period, the Tax Event by taking some Ministerial
Action, the Trust or the Sponsor will pursue such Ministerial Action in lieu of
redemption.
"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 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 (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 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").
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 Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities until such certificates are
presented to the Sponsor or its agent for exchange.
5
<PAGE>
(d) The Trust may not redeem fewer than all the outstanding Securities
unless all accumulated and unpaid Distributions have been paid 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 New York Stock Exchange or on such other
national securities exchange or similar organization as the Trust Preferred
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 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 Trust Preferred
Securities are to be redeemed, the Trust Preferred Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Trust Preferred Securities, it
being understood that, in respect of Trust Preferred 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 Trust Preferred Securities are in book-entry
form, with respect to the Trust Preferred Securities, by 12:00 noon, New York
City time, on the redemption date, provided that the Sponsor has paid the
Institutional Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional 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 Trust Preferred Securities and will give the Depository
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Trust Preferred Securities, and (B) with respect to Trust
Preferred Securities issued in definitive form and Common Securities, provided
that the Sponsor has paid the Institutional Trustee a sufficient amount of cash
in connection with the related redemption or maturity of the Debentures, the
Institutional Trustee will pay the relevant Redemption Price to the Holders of
such Securities by
6
<PAGE>
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 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
Institutional 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 Trust Preferred Securities, the
Depository or its nominee (or any successor Clearing Agency or its nominee) if
the Global Certificates have been issued or, if Definitive Preferred 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 Trust
Preferred Securities by tender, in the open market or otherwise.
5. [Conversion Rights.
The Holders of Securities shall have the right at any time prior to the
close of business on ^ (or, in the case of Securities called for redemption,
prior to the close of business on the Business Day prior to the redemption
date), at their option, to cause the Conversion Agent to convert Securities, on
behalf of the converting Holders, into shares of [Bay View Common Stock] in the
manner described herein on and subject to the following terms and conditions:]
(a) [The Securities will be convertible at the office of the Conversion
Agent into fully paid and nonassessable shares of Bay View Common Stock pursuant
to the Holder's direction to the Conversion Agent to exchange such Securities
for a portion of the Debentures theretofore held by the Trust on the basis of
one Security per $^ principal amount of Debentures, and immediately convert such
amount of Debentures into fully paid and nonassessable shares of Bay View Common
Stock at an initial rate of _____ shares of Bay View Common Stock per $^
principal amount of Debentures (which is equivalent to a conversion price of $^
per share of
7
<PAGE>
Bay View Common Stock, subject to certain adjustments set forth in [Sections 7.3
and 7.4] of the Supplemental Indenture (as so adjusted, "Conversion Price")).]
(b) [In order to convert Securities into Bay View Common Stock the Holder
shall submit to the Conversion Agent at the office referred to above an
irrevocable request to convert Securities on behalf of such Holder (the
"Conversion Request"), together, if the Securities are in certificated form,
with such certificates. The Conversion Request shall (i) set forth the number of
Securities to be converted and the name or names, if other than the Holder, in
which the shares of Bay View Common Stock should be issued and (ii) direct the
Conversion Agent (a) to exchange such Securities for a portion of the Debentures
held by the Trust (at the rate of exchange specified in the preceding paragraph)
and (b) to immediately convert such Debentures on behalf of such Holder, into
Bay View Common Stock (at the conversion rate specified in the preceding
paragraph). The Conversion Agent shall notify the Trust of the Holder's election
to exchange Securities for a portion of the Debentures held by the Trust and the
Trust shall, upon receipt of such notice, deliver to the Conversion Agent the
appropriate principal amount of Debentures for exchange in accordance with this
Section. The Conversion Agent shall thereupon notify Bay View Capital
Corporation of the Holder's election to convert such Debentures into shares of
Bay View Common Stock. If a Security is surrendered for conversion after the
close of business on any regular record date for payment of a Distribution and
before the opening of business on the corresponding Distribution payment date,
then, notwithstanding such conversion, the Distribution payable on such
Distribution payment date will be paid in cash to the person in whose name the
Security is registered at the close of business on such record date, and (other
than a Security or a portion of a Security called for redemption on a redemption
date occurring after such record date and on or prior to such Distribution
payment date) when so surrendered for conversion, the Security must be
accompanied by payment of an amount equal to the Distribution payable on such
Distribution payment date. Except as provided above, neither the Trust nor the
Sponsor will make, or be required to make, any payment, allowance or adjustment
upon any conversion on account of any accumulated and unpaid Distributions
accumulated on the Securities (including any Additional Amounts accumulated
thereon) surrendered for conversion, or on account of any accumulated and unpaid
dividends on the shares of Bay View Common Stock issued upon such conversion.
Securities shall be deemed to have been converted immediately prior to the close
of business on the day on which a Notice of Conversion relating to such
Securities is received by the Trust in accordance with the foregoing provision
(the "Conversion Date"). The Person or Persons entitled to receive Bay View
Common Stock issuable upon conversion of the Debentures shall be treated for all
purposes as the record holder or holders of such Bay View Common Stock at such
time. As promptly as practicable on or after the Conversion Date, Bay View
Capital Corporation shall issue and deliver at the office of the Conversion
Agent a certificate or certificates for the number of full shares of Bay View
Common Stock issuable upon such conversion, together with the cash payment, if
any, in lieu of any fraction of any share to the Person or Persons entitled to
receive the same, unless otherwise directed by the Holder in the notice of
conversion and the Conversion Agent shall distribute such certificate or
certificates to such Person or Persons.]
(c) [Each Holder of a Security by his acceptance thereof appoints the
Person serving as Conversion Agent under the Declaration as "Conversion Agent"
for the purpose of effecting the conversion of Securities in accordance with
this Section. In effecting the conversion and transactions described in this
Section, the Conversion Agent shall be acting as agent of the
8
<PAGE>
Holders of Securities directing it to effect such conversion transactions. The
Conversion Agent is hereby authorized (i) to exchange Securities from time to
time for Debentures held by the Trust in connection with the conversion of such
Securities in accordance with this Section and (ii) to convert all or a portion
of the Debentures into Bay View Common Stock and thereupon to deliver such
shares of Bay View Common Stock in accordance with the provisions of this
Section and to deliver to the Trust a new Debenture or Debentures for any
resulting unconverted principal amount.]
(d) [No fractional shares of Bay View Common Stock will be issued as a
result of conversion, but in lieu thereof, such fractional interest will be paid
in cash by Bay View Capital Corporation to the Conversion Agent, which in turn
will make such payment to the Holder or Holders of Securities so converted.]
(e) [Bay View Capital Corporation shall at all times reserve and keep
available out of its authorized and unissued Bay View Common Stock, solely for
issuance upon the conversion of the Debentures, free from any preemptive or
other similar rights, such number of shares of Bay View Common Stock as shall
from time to time be issuable upon the conversion of all the Debentures then
outstanding. Notwithstanding the foregoing, Bay View Capital Corporation shall
be entitled to deliver upon conversion of Debentures, shares of Bay View Common
Stock reacquired and held in the treasury of Bay View Capital Corporation (in
lieu of the issuance of authorized and unissued shares of Bay View Common
Stock), so long as any such treasury shares are free and clear of all liens,
charges, security interests or encumbrances. Any shares of Bay View Common Stock
issued upon conversion of the Debentures shall be duly authorized, validly
issued and fully paid and nonassessable. The Trust shall deliver the shares of
Bay View Common Stock received upon conversion of the Debentures to the
converting Holder free and clear of all liens, charges, security interests and
encumbrances, except for United States withholding taxes. Each of Bay View
Capital Corporation and the Trust shall prepare and shall use its best efforts
to obtain and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all applicable
requirements as to registration or qualification of Bay View Common Stock (and
all requirements to list Bay View Common Stock issuable upon conversion of
Debentures that are at the time applicable), in order to enable Bay View Capital
Corporation to lawfully issue Bay View Common Stock to the Trust upon conversion
of the Debentures and the Trust to lawfully deliver Bay View Common Stock to
each Holder upon conversion of the Securities.]
(f) [Bay View Capital Corporation will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of Bay View Common Stock
on conversion of Debentures and the delivery of the shares of Bay View Common
Stock by the Trust upon conversion of the Securities. Bay View Capital
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares of Bay
View Common Stock in a name other than that in which the Securities so converted
were registered, and no such issue or delivery shall be made unless and until
the person requesting such issue has paid to the Trust the amount of any such
tax, or has established to the satisfaction of the Trust that such tax has been
paid.]
(g) [Nothing in the preceding Paragraph (f) shall limit the requirement of
the Trust to withhold taxes pursuant to the terms of the Securities or set forth
in this Annex I to the
9
<PAGE>
Declaration or to the Declaration itself or otherwise require the Institutional
Trustee or the Trust to pay any amounts on account of such withholdings.]
6. Voting Rights - Trust Preferred Securities.
(a) Except as provided under Sections 6(b) and 8 and as otherwise required
by law and the Declaration, the Holders of the Trust Preferred 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 Trust Preferred Securities, voting
separately as a class, may direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or exercising
any trust or power conferred upon the Institutional Trustee under the
Declaration, including the right to direct the Institutional 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 [Section 513] of 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 Event of Default has
occurred under the Indenture and is continuing, then the Holders of 25% in
liquidation amount of the Trust Preferred Securities, voting separately as a
class, may direct the Institutional Trustee, as holder of the Debentures, to
declare the principal amount of 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 the Holders of greater than a
majority in principal amount of Debentures affected thereby (a "Super
Majority"), the Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the proportion in
liquidation amount of the Trust Preferred Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding. The Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Trust Preferred
Securities. Other than with respect to directing the time, method and place of
conducting any remedy available to the Institutional Trustee or the Debenture
Trustee as set forth above, the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the Trust Preferred
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. The Holders of a Majority in liquidation amount of the Trust
Preferred Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee
or to direct the exercise of any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the Institutional
Trustee to exercise the remedies available to it as a holder of the Debentures.
If the Institutional Trustee fails to enforce its rights under the Debentures, a
Holder of Trust Preferred Securities, to the fullest extent permitted by law,
may institute a legal proceeding directly against the Sponsor to enforce the
Institutional Trustee's rights under the Debentures without first instituting
any legal proceeding against the Institutional 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 Trust Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
interest
10
<PAGE>
on the Debentures having a principal amount equal to the aggregate liquidation
amount of the Trust Preferred 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 Trust Preferred Securities to the extent of any payment made by the
Sponsor to such Holder of Trust Preferred Securities in such Direct Action.
Except as provided in the preceding sentences, the Holders of Trust Preferred
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 Trust Preferred Securities may be
given at a separate meeting of Holders of Trust Preferred 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 Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities will be
required for the Trust to redeem and cancel Trust Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Trust Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the Trust
Preferred 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.
7. Voting Rights - Common Securities.
(a) Except as provided under Sections 7(b), (c) and 8 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 5 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 Trust Preferred 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
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any
11
<PAGE>
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under [Section 513] of 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 the Holders of greater than a majority in
principal amount of Debentures affected thereby (a "Super Majority"), the
Institutional Trustee may only give such consent or take such action at the
written direction of 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. Pursuant to this
Section 7(c), the Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Trust Preferred
Securities. Other than with respect to directing the time, method and place of
conducting any remedy available to the Institutional Trustee or the Debenture
Trustee as set forth above, the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the Common Securities under
this paragraph unless the Institutional 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 Institutional 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 Institutional Trustee's rights under
the Declaration, without first instituting a legal proceeding against the
Institutional 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 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.
8. 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, (i) 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, or (ii) the dissolution, winding-up
or termination of the Trust, other than as described in Section 8.1 of the
Declaration, 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
12
<PAGE>
at least a Majority in liquidation amount of the Securities affected thereby;
provided, however, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Trust Preferred 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 Institutional 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
Institutional 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 (a "Super Majority"), the Institutional 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 Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Securities
under this Section 8(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.
9. 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 payment shall be paid first to each Holder of the Trust
Preferred Securities pro rata according to the aggregate liquidation amount of
Trust Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Trust Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Trust Preferred
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.
10. Ranking.
The Trust Preferred 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
Trust Preferred Securities.
13
<PAGE>
11. Listing.
The Regular Trustees shall use their best efforts to cause the Trust
Preferred Securities to be listed for quotation on the New York Stock Exchange,
Inc.
12. Acceptance of Securities Guarantee and Indenture.
Each Holder of Trust Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Trust Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
13. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or similar rights to
subscribe for any additional securities.
14. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Trust Preferred
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.
14
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This
Preferred 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 Preferred
Security is exchangeable for Trust Preferred 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 Preferred
Security (other than a transfer of this Preferred 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 Preferred 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
Preferred 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 Trust Preferred Securities: _____
CUSIP NO.
Certificate Evidencing Trust Preferred Securities
of
Bay View Capital II
[$^/^%] Trust Preferred Securities (liquidation amount $^ per Preferred
Security)
Bay View Capital II, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ____________ (the
"Holder") is the registered owner of Trust Preferred Securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [$^/^%] [Convertible] Trust Preferred Securities, [Series ^]
(liquidation amount $^ per Preferred Security) (the "Trust Preferred
Securities'). The Trust Preferred 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. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Trust Preferred 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 ^, 199^, as the same may be
amended from time to time (the "Declaration"), including the designation of the
terms of the Trust Preferred Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in
A-1-1
<PAGE>
the Declaration. The Holder is entitled to the benefits of the Trust Preferred
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Trust Preferred 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 is 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 Trust Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon has
been properly executed, these Trust Preferred 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 __________.
Bay View Capital II
By:
---------------------------
Name:
Title: Regular Trustee
A-1-2
<PAGE>
[FORM OF CERTIFICATE OF AUTHENTICATION]
INSTITUTIONAL TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Security Certificates referred to in the
within-mentioned Declaration.
Dated: ___________________________
^,
as Institutional Trustee or as Authenticating Agent
By:__________________________ By:_________________________
A-1-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a rate
per annum of ^ % (the "Coupon Rate") of the stated liquidation amount of $^ per
Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional 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
Institutional Trustee and to the extent the Institutional 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 Trust Preferred
Securities will be cumulative, will accrue from ^, 199^ and will be payable
quarterly in arrears, on ^, ^,^ and ^ of each year, commencing on ^, 199^, 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 Trust Preferred Securities shall be redeemable as provided in the
Declaration.
[The Trust Preferred Securities shall be convertible into shares of Bay
View Common Stock, through (i) the exchange of Trust Preferred Securities for a
portion of the Debentures and (ii) the immediate conversion of such Debentures
into Bay View Common Stock, in the manner and according to the terms set forth
in the Declaration.]
A-1-4
<PAGE>
[CONVERSION REQUEST
To: ^, as Institutional Trustee of Bay View Capital II
The undersigned owner of these Trust Preferred Securities hereby
irrevocably exercises the option to convert these Trust Preferred Securities, or
the portion below designated, into Common Stock of Bay View Capital Corporation
(the "Bay View Common Stock") in accordance with the terms of the Amended and
Restated Declaration of Trust, dated as of ^, 199^ (as amended from time to
time, the "Declaration"), by ^,^ and ^, as Regular Trustees, ^, as Delaware
Trustee, ^ , as Institutional Trustee, Bay View Capital Corporation, as Sponsor,
and by the Holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to the Declaration. Pursuant to the aforementioned
exercise of the option to convert these Trust Preferred Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Declaration) to (i) exchange such Trust Preferred Securities for a portion of
the Debentures (as that term is defined in the Declaration) held by the Trust
(at the rate of exchange specified in the terms of the Trust Preferred
Securities set forth as Annex I to the Declaration) and (ii) immediately convert
such Debentures on behalf of the undersigned, into Bay View Common Stock (at the
conversion rate specified in the terms of the Trust Preferred Securities set
forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: _________________, ______
in whole in part
Number of Trust Preferred Securities to be Converted:
A-1-5
<PAGE>
If a name or names other than the undersigned, please indicate in the
spaces below the name or names in which the shares of Bay View Common Stock are
to be issued, along with the address or addresses of such Person or Persons
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
-------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address, Including Zip Code, and Social
Security or Other Identifying Number
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
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 Conversion Agent, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.]
A-1-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
A-1-7
<PAGE>
agent to transfer this Preferred 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 Preferred 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 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.
A-1-8
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number: ________ Number of Common Securities: _______
Certificate Evidencing Common Securities
of
Bay View Capital II
[$^/^%] Common Securities
(liquidation amount $^ per Common Security)
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE LIMITED CIRCUMSTANCES AS
DESCRIBED IN THE DECLARATION (AS DEFINED BELOW):
Bay View Capital I, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the ____%
[$^/^%] Common Securities (liquidation amount $^ per Common Security) (the
"Common Securities"). The Common 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. 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 ^, 199^, 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 is 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.
A-2-1
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day of
^, 199^.
Bay View Capital II
By:
-------------------------
Name:
Title: Regular Trustee
A-2-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate per
annum of ^% (the "Coupon Rate") of the stated liquidation amount of $50 per
Common Security, such rate being the rate of interest payable on the Debentures
to be held by the Institutional 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 Institutional Trustee and to
the extent the Institutional 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 ^, 199^ and will be payable quarterly in
arrears, on ^, ^, ^ and ^ of each year, commencing on ^, 199^, 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.
[The Common Securities shall be convertible into shares of Bay View Common
Stock, through (i) the exchange of Common Securities for a portion of the
Debentures and (ii) the immediate conversion of such Debentures into Bay View
Common Stock, in the manner and according to the terms set forth in the
Declaration.]
A-2-3
<PAGE>
[CONVERSION REQUEST
To: ^
as Institutional Trustee of
Bay View Capital I
The undersigned owner of these Common Securities hereby irrevocably
exercises the option to convert these Common Securities, or the portion below
designated, into Common Stock of Bay View Capital Corporation (the "Bay View
Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust dated as of ^, 199^ (as amended from time to time, the
"Declaration"), by ^,^ and ^, as Regular Trustees, ^, as Delaware Trustee, ^, as
Institutional Trustee, Bay View Capital Corporation, as Sponsor, and by the
Holders, from time to time, of undivided beneficial interests in the Trust to be
issued pursuant to the Declaration. Pursuant to the aforementioned exercise of
the option to convert these Common Securities, the undersigned hereby directs
the Conversion Agent (as that term is defined in the Declaration) to (i)
exchange such Common Securities for a portion of the Debentures (as that term is
defined in the Declaration) held by the Trust (at the rate of exchange specified
in the terms of the Common Securities set forth as Annex I to the Declaration)
and (ii) immediately convert such Debentures on behalf of the undersigned, into
Bay View Common Stock (at the conversion rate specified in the terms of the
Common Securities set forth as Annex I to the Declaration).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: _________________, ______
in whole in part
Number of Common Securities to be Converted:
-----------------------------------------------
A-2-4
<PAGE>
If a name or names other than the undersigned, please indicate in the
spaces below the name or names in which the shares of Bay View Common Stock are
to be issued, along with the address or addresses of such Person or Persons
- --------------------------------- ----------------------------------
- --------------------------------- ----------------------------------
- --------------------------------- ----------------------------------
- --------------------------------- ----------------------------------
- --------------------------------- ----------------------------------
- --------------------------------- ----------------------------------
----------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address, Including Zip Code, and Social
Security or Other Identifying Number
- --------------------------------- ----------------------------------
- --------------------------------- ----------------------------------
- --------------------------------- ----------------------------------
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 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.]
A-2-5
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
A-2-6
<PAGE>
agent to transfer this Common 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 Common
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 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.
A-2-7
<PAGE>
EXHIBIT 4(p)
- -------------------------------------------------------------------------------
Bay View Capital I
-------------------------------------------
TRUST PREFERRED SECURITIES GUARANTEE
AGREEMENT
-------------------------------------------
Dated as of , 199
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions and Interpretation................................ 2
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 Preferred Guarantee Trustee.................... 5
Section 2.4 Periodic Reports to Preferred 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 PREFERRED GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Preferred Guarantee Trustee.......... 6
Section 3.2 Certain Rights of Preferred Guarantee Trustee................. 8
Section 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
Securities Guarantee....................................... 10
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
Section 4.1 Preferred Guarantee Trustee; Eligibility...................... 10
Section 4.2 Appointment, Removal and Resignation of Preferred
Guarantee Trustee........................................... 11
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
ARTICLE V
GUARANTEE
<S> <C>
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............................................. 13
Section 5.5 Guarantee of Payment.......................................... 13
Section 5.6 Subrogation................................................... 13
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................................................... 15
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....................................................... 17
Section 9.4 Benefit....................................................... 17
Section 9.5 Governing Law................................................. 17
</TABLE>
ii
<PAGE>
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT*
This TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT (the "TRUST Preferred
Securities Guarantee"), dated as of ^, 199^ is executed and delivered by Bay
View Capital Corporation, a Delaware corporation (the "Guarantor"), and ^, as
trustee (the "Preferred Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Trust Preferred 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 ^, 199^ 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 TRUST PREFERRED SECURITIES, HAVING AN AGGREGATE LIQUIDATION AMOUNT OF $^
($^ IF THE UNDERWRITERS' OVER-ALLOTMENT OPTION IS EXERCISED IN FULL) DESIGNATED
THE [$^/^%] TRUST PREFERRED SECURITIES[, SERIES^] (THE "TRUST PREFERRED
SECURITIES").
WHEREAS, AS INCENTIVE FOR THE HOLDERS TO PURCHASE THE TRUST PREFERRED
SECURITIES, THE GUARANTOR DESIRES IRREVOCABLY AND UNCONDITIONALLY TO AGREE, TO
THE EXTENT SET FORTH IN THIS TRUST PREFERRED SECURITIES GUARANTEE, TO PAY TO THE
HOLDERS OF THE TRUST PREFERRED 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 TRUST PREFERRED SECURITIES GUARANTEE FOR
THE BENEFIT OF THE HOLDERS OF THE COMMON SECURITIES (AS DEFINED IN THE
DECLARATION REFERRED TO BELOW), 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 TRUST PREFERRED SECURITIES TO RECEIVE
GUARANTEE PAYMENTS UNDER THIS TRUST PREFERRED SECURITIES GUARANTEE.
NOW, THEREFORE, IN CONSIDERATION OF THE PURCHASE BY EACH HOLDER OF TRUST
PREFERRED SECURITIES, WHICH PURCHASE THE GUARANTOR HEREBY AGREES SHALL BENEFIT
THE GUARANTOR, THE GUARANTOR EXECUTES AND DELIVERS THIS TRUST PREFERRED
SECURITIES GUARANTEE FOR THE BENEFIT OF THE HOLDERS.
- -----------------------
* Unless otherwise indicated or unless the context otherwise requires, (i)
bracketed language relating to conversion of the Trust Preferred
Securities will be included only if the Trust Preferred Securities are
convertible into Bay View Common Stock or other securities; and (ii) all
references to specific sections of the Declaration, the Base Indenture and
the Supplemental Indenture are subject to change. In addition, in the
event that the Trust Preferred Securities are convertible into securities
other than Bay View Common Stock, all references to Bay View Common Stock
will be appropriately modified.
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions and Interpretation.
- ------------- ------------------------------
In this Trust Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Trust Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) terms defined in the Declaration as at the date of execution of this
Trust Preferred Securities Guarantee have the same meaning when used in this
Trust Preferred Securities Guarantee unless otherwise defined in this Trust
Preferred Securities Guarantee;
(c) a term defined anywhere in this Trust Preferred Securities Guarantee
has the same meaning throughout;
(d) all references to "the Trust Preferred Securities Guarantee" or "this
Trust Preferred Securities Guarantee" are to this Trust Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Trust Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Trust Preferred
Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Trust Preferred Securities Guarantee, unless otherwise defined in
this Trust Preferred 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 , 199 between the
Company and , as trustee.
"Common Securities Guarantee" means the Common Securities Guarantee
Agreement dated as of , 199 of the Sponsor in respect of the Common
Securities.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at .
"Covered Person" means any Holder or beneficial owner of Trust Preferred
Securities.
2
<PAGE>
"Declaration Event of Default" means an Event of Default as defined in the
Declaration.
"Guarantee Event of Default" means (i) the failure of the Guarantor to
perform any of its payment or other obligations under this Trust Preferred
Securities Guarantee or [(ii) the failure of the Guarantor to deliver Bay View
Common Stock upon an appropriate election by any Holder of Trust Preferred
Securities to convert such Trust Preferred Securities into shares of Bay View
Common Stock.]
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Trust Preferred 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 Trust Preferred 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 Trust Preferred 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 conversion of
all of the Trust Preferred Securities into Bay View Common Stock,] the
redemption of all outstanding Trust Preferred Securities or the distribution of
Debentures to the Holders in exchange for Trust Preferred Securities as provided
in the Declaration) or in connection with any transaction permitted pursuant to
Section 3.15 of the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accumulated and unpaid Distributions on the Trust
Preferred 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 Trust Preferred Securities to receive
Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Trust Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Trust Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate
of the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Preferred Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of ^, 199^ between
the Guarantor (the "Debenture Issuer") and ^, as trustee, as supplemented by the
First Supplemental Indenture dated as of ^, 199^ between the Debenture Issuer
and ^, as trustee, 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 Trust Preferred Securities or, except as provided
by the Trust Indenture Act, a vote by
3
<PAGE>
Holder(s) of Trust Preferred 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 Trust Preferred Securities.
"Preferred Guarantee Trustee" means ^, until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Trust Preferred Securities Guarantee and thereafter means
each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, 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 Preferred 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 Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Securities" means the Common Securities and the Trust Preferred
Securities.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Trust Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Trust Preferred
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 Trust Preferred
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 Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Trust Preferred 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 Preferred Guarantee Trustee, provided, that the Guarantor shall not be
obligated to provide such List of Holders at
4
<PAGE>
any time the List of Holders does not differ from the most recent List of
Holders given to the Preferred Guarantee Trustee by the Guarantor or in the
event that the Preferred Guarantee Trustee is the Registrar under the
Declaration. The Preferred Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Preferred Guarantee Trustee.
------------------------------------------
Within 60 days after May 15 of each year, the Preferred Guarantee Trustee
shall provide to the Holders of the Trust Preferred 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 Preferred
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
Section 2.4 Periodic Reports to Preferred Guarantee Trustee.
-----------------------------------------------
The Guarantor shall provide to the Preferred 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 Preferred
Guarantee Trustee is for informational purposes only and the Preferred 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 Preferred 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 Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Trust Preferred 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 Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
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 Trust Preferred 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.
5
<PAGE>
Section 2.7 Guarantee Event of Default; Notice.
----------------------------------
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Guarantee Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders of the Trust Preferred Securities, notices of
all such Events of Default, unless such defaults have been cured before the
giving of such notice, provided, that, the Preferred Guarantee Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Preferred Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Trust Preferred
Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have knowledge
of any Guarantee Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the Preferred
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 Trust
Preferred 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 PREFERRED GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Preferred Guarantee Trustee.
----------------------------------------------------
(a) This Trust Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Trust
Preferred Securities, and the Preferred Guarantee Trustee shall not transfer
this Trust Preferred Securities Guarantee to any Person except a Holder of Trust
Preferred Securities exercising his or her rights pursuant to Section 5.4(b) or
to a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred 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 Preferred Guarantee Trustee.
(b) If an Guarantee Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is continuing, the
Preferred Guarantee Trustee shall (and the Guarantor acknowledges that the
Preferred Guarantee Trustee shall) enforce this Trust Preferred Securities
Guarantee for the benefit of the Holders of the Trust Preferred Securities.
(c) The Preferred 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
6
<PAGE>
perform only such duties as are specifically set forth in this Trust Preferred
Securities Guarantee, and no implied covenants shall be read into this Trust
Preferred Securities Guarantee against the Preferred 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
Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall exercise such
of the rights and powers vested in it by this Trust Preferred Securities
Guarantee, 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.
(d) No provision of this Trust Preferred Securities Guarantee shall be
construed to relieve the Preferred 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 Preferred Guarantee
Trustee shall be determined solely by the express provisions of this Trust
Preferred Securities Guarantee, and the Preferred Guarantee Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this Trust Preferred Securities Guarantee,
and no implied covenants or obligations shall be read into this Trust
Preferred Securities Guarantee against the Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred 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
Preferred Guarantee Trustee and conforming to the requirements of this
Trust Preferred 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 Preferred Guarantee Trustee, the Preferred
Guarantee Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Trust Preferred
Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Preferred
Guarantee Trustee, unless it shall be proved that the Preferred Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Preferred 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 Trust Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Preferred Guarantee
Trustee, or exercising any trust or power conferred upon the Preferred
Guarantee Trustee under this Trust Preferred Securities Guarantee; and
7
<PAGE>
(iv) no provision of this Trust Preferred Securities Guarantee shall
require the Preferred 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 Preferred
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 Trust Preferred Securities Guarantee or indemnity, reasonably satisfactory
to the Preferred Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
Section 3.2 Certain Rights of Preferred Guarantee Trustee.
---------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Preferred 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 Trust
Preferred Securities Guarantee shall be sufficiently evidenced by an Officers'
Certificate.
(iii) Whenever, in the administration of this Trust Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking, suffering or omitting any
action hereunder, the Preferred 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 Preferred 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 Preferred 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
Preferred Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Preferred Securities
Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Preferred
Securities Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Preferred Guarantee Trustee such security and
indemnity, reasonably satisfactory to the Preferred Guarantee Trustee, against
the costs, expenses (including attorneys' fees and
8
<PAGE>
expenses and the expenses of the Preferred 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 Preferred Guarantee Trustee.
(vii) The Preferred 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 Preferred Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit.
(viii) The Preferred 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 Preferred 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 Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Trust Preferred Securities, and
the signature of the Preferred 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 Preferred Guarantee Trustee to so
act or as to its compliance with any of the terms and provisions of this Trust
Preferred Securities Guarantee, both of which shall be conclusively evidenced by
the Preferred Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Trust Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Preferred Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation amount of the Trust
Preferred 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 Preferred 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 Trust Preferred 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 Trust Preferred Securities Guarantee.
9
<PAGE>
(b) No provision of this Trust Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred 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 Preferred 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 Preferred Guarantee Trustee shall be construed to be a duty.
Section 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
-----------------------------------------------------------
Securities Guarantee.
- --------------------
The recitals contained in this Trust Preferred Securities Guarantee shall
be taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Trust Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
Section 4.1 Preferred Guarantee Trustee; Eligibility.
----------------------------------------
(a) There shall at all times be a Preferred 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 Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
10
<PAGE>
Section 4.2 Appointment, Removal and Resignation of Preferred Guarantee
-----------------------------------------------------------
Trustee.
- -------
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold office
until a Successor Preferred Guarantee Trustee shall have been appointed or until
its removal or resignation. The Preferred Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred 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 Preferred Guarantee
Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Trust Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued and owing to the Preferred 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.
11
<PAGE>
Section 5.2 Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Trust Preferred
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.
Section 5.3 Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor under
this Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Trust Preferred 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 Trust Preferred
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 Trust Preferred
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.
12
<PAGE>
Section 5.4 Rights of Holders.
-----------------
(a) The Holders of a Majority in liquidation amount of the Trust Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Trust Preferred Securities Guarantee or to direct the exercise
of any trust or power conferred upon the Preferred Guarantee Trustee under this
Trust Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce such Trust
Preferred Securities Guarantee, any Holder of Trust Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the
Preferred Guarantee Trustee's rights under this Trust Preferred Securities
Guarantee, without first instituting a legal proceeding against the Issuer, the
Preferred 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 Holder of Trust Preferred Securities may directly institute
a proceeding against the Guarantor for enforcement of this Trust Preferred
Securities Guarantee for such payment.
Section 5.5 Guarantee of Payment.
--------------------
This Trust Preferred 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
Trust Preferred Securities against the Issuer in respect of any amounts paid to
such Holders by the Guarantor under this Trust Preferred 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 Trust Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Trust Preferred 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 Trust Preferred Securities,
and that the Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Trust Preferred Securities
Guarantee notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
13
<PAGE>
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1 Limitation of Transactions.
--------------------------
So long as any Trust Preferred 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) or the
satisfaction by the Guarantor of its obligations pursuant to any contract or
security requiring the Guarantor to purchase shares of the Guarantor's capital
stock (or capital stock equivalents), (ii) purchases of shares of the
Guarantor's capital stock (or capital stock equivalents) from officers,
directors or employees of the Guarantor or its subsidiaries pursuant to
employment agreements or upon termination of employment or retirement, (iii) 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, (iv) dividends or distributions of shares of common stock on common
stock, (v) 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, (vi)
[dividends or distributions on, or redemptions, purchases or acquisitions of, or
liquidation payments with respect to, the Guarantor's Preferred Stock,] (vii)
purchases or other acquisitions of common stock in connection with a dividend
reinvestment or other similar plan, or (viii) 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 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 the
foregoing (other than pursuant to this Trust Preferred Securities Guarantee or
the Common Securities Guarantee Agreement).
Section 6.2 Ranking.
-------
This Trust Preferred 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 except any liabilities that
may be pari passu expressly by their terms, [DELETE IF APPROPRIATE-(ii) pari
passu in right of payment with the most senior preferred or preference stock
now or hereafter issued by the Guarantor, if any, and with any guarantee now
or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor,] and (iii) senior to the
Guarantor's common stock.
14
<PAGE>
ARTICLE VII
TERMINATION
Section 7.1 Termination.
-----------
This Trust Preferred Securities Guarantee shall terminate (i) upon full
payment of the redemption price of all Trust Preferred Securities, together with
all accumulated and unpaid Distributions thereon to but excluding the date of
redemption, [(ii) upon the conversion of the Trust Preferred Securities into Bay
View Common Stock or other securities or property as provided in the Declaration
or] upon the distribution of the Debentures to the Holders of all of the Trust
Preferred Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Trust Preferred Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Trust Preferred Securities must restore payment of any sums paid under the
Trust Preferred Securities or under this Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage,
liability, expense or claim 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 Trust Preferred 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
15
<PAGE>
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 Trust Preferred Securities
Guarantee or the resignation or removal of the Preferred Guaranteed Trustee.
When the Preferred Guarantee Trustee incurs expenses or renders services in
connection with an Event of Default specified in [Section 501(6) or Section
501(7)] of the Base 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 Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities Guarantee without the prior
approval of the holders of at least a Majority in liquidation amount of the
Trust Preferred 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, 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 Trust Preferred 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 Trust Preferred
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 Trust Preferred 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 Trust Preferred 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 Trust Preferred
Securities Guarantee, any change which only eliminates or limits any of the
dividends, distributions, redemptions,
16
<PAGE>
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 Trust Preferred 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 Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the Trust
Preferred Securities):
^
^
^
Attn: ^
(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 Trust Preferred Securities):
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Attn: Chief Financial Officer
(c) If given to any Holder of Trust Preferred Securities, at the address
set forth on the books and records of the Issuer.
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 Trust Preferred Securities Guarantee is solely for the benefit of the
Holders of the Trust Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Trust Preferred Securities.
Section 9.5 Governing Law.
-------------
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
17
<PAGE>
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
18
<PAGE>
THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
BAY VIEW CAPITAL CORPORATION,
as Guarantor
By: ____________________________________
Name: __________________________________
Title: _________________________________
^,
as Preferred Guarantee Trustee
By: ____________________________________
Name: __________________________________
Title: _________________________________
19
<PAGE>
EXHIBIT 4(q)
________________________________________________________________________________
BAY VIEW CAPITAL II
____________________________________
TRUST PREFERRED SECURITIES GUARANTEE
AGREEMENT
____________________________________
Dated as of , 199
________________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions and Interpretation.................................. 2
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 Preferred Guarantee Trustee...................... 5
Section 2.4 Periodic Reports to Preferred 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 PREFERRED GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Preferred Guarantee Trustee............ 6
Section 3.2 Certain Rights of Preferred Guarantee Trustee................... 8
Section 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
Securities Guarantee.......................................... 10
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
Section 4.1 Preferred Guarantee Trustee; Eligibility........................ 10
Section 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustee....................................................... 11
</TABLE>
i
<PAGE>
ARTICLE V
GUARANTEE
<TABLE>
<S> <C>
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............................................... 13
Section 5.5 Guarantee of Payment............................................ 13
Section 5.6 Subrogation..................................................... 13
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..................................................... 15
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......................................................... 17
Section 9.4 Benefit......................................................... 17
Section 9.5 Governing Law................................................... 17
</TABLE>
ii
<PAGE>
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT*
This TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Trust Preferred
Securities Guarantee"), dated as of ^, 199^ is executed and delivered by Bay
View Capital Corporation, a Delaware corporation (the "Guarantor"), and ^, as
trustee (the "Preferred Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Trust Preferred Securities (as defined
herein) of Bay View Capital II, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ^, 199^ 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 trust preferred securities, having an aggregate liquidation amount of
$^ ($^ if the Underwriters' over-allotment option is exercised in full)
designated the [$^/^%] Trust Preferred Securities[, Series ^] (the "Trust
Preferred Securities").
WHEREAS, as incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Trust Preferred Securities Guarantee, to pay to the
Holders of the Trust Preferred 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 Trust Preferred Securities Guarantee for
the benefit of the holders of the Common Securities (as defined in the
declaration referred to below), 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 Trust Preferred Securities to receive
Guarantee Payments under this Trust Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of Trust
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Trust Preferred
Securities Guarantee for the benefit of the Holders.
_________________________
^ Unless otherwise indicated or unless the context otherwise requires, (i)
bracketed language relating to conversion of the Trust Preferred Securities
will be included only if the Trust Preferred Securities are convertible
into Bay View Common Stock or other securities; and (ii) all references to
specific sections of the Declaration, the Base Indenture and the
Supplemental Indenture are subject to change. In addition, in the event
that the Trust Preferred Securities are convertible into securities other
than Bay View Common Stock, all references to Bay View Common Stock will be
appropriately modified.
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions and Interpretation.
------------------------------
In this Trust Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Trust Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) terms defined in the Declaration as at the date of execution of this
Trust Preferred Securities Guarantee have the same meaning when used in this
Trust Preferred Securities Guarantee unless otherwise defined in this Trust
Preferred Securities Guarantee;
(c) a term defined anywhere in this Trust Preferred Securities Guarantee
has the same meaning throughout;
(d) all references to "the Trust Preferred Securities Guarantee" or "this
Trust Preferred Securities Guarantee" are to this Trust Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Trust Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Trust Preferred
Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Trust Preferred Securities Guarantee, unless otherwise defined in
this Trust Preferred 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 ^, 199^ between the
Company and ^, as trustee.
"Common Securities Guarantee" means the Common Securities Guarantee
Agreement dated as of ^, 199^ of the Sponsor in respect of the Common
Securities.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at ^.
"Covered Person" means any Holder or beneficial owner of Trust Preferred
Securities.
2
<PAGE>
"Declaration Event of Default" means an Event of Default as defined in the
Declaration.
"Guarantee Event of Default" means (i) the failure of the Guarantor to
perform any of its payment or other obligations under this Trust Preferred
Securities Guarantee or [(ii) the failure of the Guarantor to deliver Bay View
Common Stock upon an appropriate election by any Holder of Trust Preferred
Securities to convert such Trust Preferred Securities into shares of Bay View
Common Stock.]
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Trust Preferred 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 Trust Preferred 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 Trust Preferred 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 conversion of
all of the Trust Preferred Securities into Bay View Common Stock,] the
redemption of all outstanding Trust Preferred Securities or the distribution of
Debentures to the Holders in exchange for Trust Preferred Securities as provided
in the Declaration) or in connection with any transaction permitted pursuant to
Section 3.15 of the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accumulated and unpaid Distributions on the Trust
Preferred 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 Trust Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Trust Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Trust Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate
of the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Preferred Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of ^, 199^ between
the Guarantor (the "Debenture Issuer") and ^, as trustee, as supplemented by the
First Supplemental Indenture dated as of ^, 199^ between the Debenture Issuer
and ^, as trustee, 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 Trust Preferred Securities or, except as provided
by the Trust Indenture Act, a vote by
3
<PAGE>
Holder(s) of Trust Preferred 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 Trust Preferred Securities.
"Preferred Guarantee Trustee" means ^, until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Trust Preferred Securities Guarantee and thereafter means
each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, 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 Preferred 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 Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Securities" means the Common Securities and the Trust Preferred
Securities.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Trust Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Trust Preferred
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 Trust Preferred
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 Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Trust Preferred 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 Preferred Guarantee Trustee, provided, that the Guarantor shall not be
obligated to provide such List of Holders at
4
<PAGE>
any time the List of Holders does not differ from the most recent List of
Holders given to the Preferred Guarantee Trustee by the Guarantor or in the
event that the Preferred Guarantee Trustee is the Registrar under the
Declaration. The Preferred Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Preferred Guarantee Trustee.
------------------------------------------
Within 60 days after May 15 of each year, the Preferred Guarantee Trustee
shall provide to the Holders of the Trust Preferred 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 Preferred
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
Section 2.4 Periodic Reports to Preferred Guarantee Trustee.
-----------------------------------------------
The Guarantor shall provide to the Preferred 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 Preferred
Guarantee Trustee is for informational purposes only and the Preferred 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 Preferred 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 Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Trust Preferred 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 Trust Preferred
Securities may, by vote, on behalf of the Holders of all of the Trust Preferred
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 Trust Preferred 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.
5
<PAGE>
Section 2.7 Guarantee Event of Default; Notice.
----------------------------------
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Guarantee Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders of the Trust Preferred Securities, notices of
all such Events of Default, unless such defaults have been cured before the
giving of such notice, provided, that, the Preferred Guarantee Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Preferred Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Trust Preferred
Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have knowledge
of any Guarantee Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the Preferred
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 Trust
Preferred 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 PREFERRED GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Preferred Guarantee Trustee.
----------------------------------------------------
(a) This Trust Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Trust
Preferred Securities, and the Preferred Guarantee Trustee shall not transfer
this Trust Preferred Securities Guarantee to any Person except a Holder of Trust
Preferred Securities exercising his or her rights pursuant to Section 5.4(b) or
to a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred 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 Preferred Guarantee Trustee.
(b) If an Guarantee Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is continuing, the
Preferred Guarantee Trustee shall (and the Guarantor acknowledges that the
Preferred Guarantee Trustee shall) enforce this Trust Preferred Securities
Guarantee for the benefit of the Holders of the Trust Preferred Securities.
(c) The Preferred 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
6
<PAGE>
to perform only such duties as are specifically set forth in this Trust
Preferred Securities Guarantee, and no implied covenants shall be read into this
Trust Preferred Securities Guarantee against the Preferred 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 Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Trust Preferred
Securities Guarantee, 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.
(d) No provision of this Trust Preferred Securities Guarantee shall be
construed to relieve the Preferred 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 Preferred Guarantee
Trustee shall be determined solely by the express provisions of this
Trust Preferred Securities Guarantee, and the Preferred Guarantee
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Trust Preferred
Securities Guarantee, and no implied covenants or obligations shall be
read into this Trust Preferred Securities Guarantee against the
Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred 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 Preferred Guarantee Trustee and conforming to the
requirements of this Trust Preferred 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 Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Trust Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Preferred 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 Trust Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee, or exercising any trust or power conferred
upon the Preferred Guarantee Trustee under this Trust Preferred Securities
Guarantee; and
7
<PAGE>
(iv) no provision of this Trust Preferred Securities Guarantee shall
require the Preferred 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
Preferred 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 Trust Preferred Securities Guarantee or
indemnity, reasonably satisfactory to the Preferred Guarantee Trustee,
against such risk or liability is not reasonably assured to it.
Section 3.2 Certain Rights of Preferred Guarantee Trustee.
---------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Preferred 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 Trust
Preferred Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Trust Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Preferred 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 Preferred 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 Preferred 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 Preferred Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration of this Trust Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Preferred
Securities Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Preferred Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
8
<PAGE>
expenses and the expenses of the Preferred 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 Preferred Guarantee Trustee.
(vii) The Preferred 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 Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(viii) The Preferred 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 Preferred
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 Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Trust Preferred Securities,
and the signature of the Preferred 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 Preferred
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Trust Preferred Securities Guarantee, both of which
shall be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Trust Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Preferred Guarantee Trustee
(i) may request instructions from the Holders of a Majority in liquidation
amount of the Trust Preferred 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 Preferred 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 Trust Preferred Securities 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 Trust Preferred Securities
Guarantee.
9
<PAGE>
(b) No provision of this Trust Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred 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 Preferred 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 Preferred Guarantee Trustee shall be construed to be a duty.
Section 3.3 Not Responsible for Recitals or Issuance of Trust Preferred
-----------------------------------------------------------
Securities Guarantee.
- --------------------
The recitals contained in this Trust Preferred Securities Guarantee shall
be taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Trust Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
Section 4.1 Preferred Guarantee Trustee; Eligibility.
----------------------------------------
(a) There shall at all times be a Preferred 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 Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
10
<PAGE>
Section 4.2 Appointment, Removal and Resignation of Preferred Guarantee
-----------------------------------------------------------
Trustee.
- -------
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold office
until a Successor Preferred Guarantee Trustee shall have been appointed or until
its removal or resignation. The Preferred Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred 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 Preferred Guarantee
Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Trust Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued and owing to the Preferred 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.
11
<PAGE>
Section 5.2 Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Trust Preferred
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.
Section 5.3 Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor under
this Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Trust Preferred 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 Trust Preferred
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 Trust Preferred
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.
12
<PAGE>
Section 5.4 Rights of Holders.
-----------------
(a) The Holders of a Majority in liquidation amount of the Trust Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Trust Preferred Securities Guarantee or to direct the exercise
of any trust or power conferred upon the Preferred Guarantee Trustee under this
Trust Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce such Trust
Preferred Securities Guarantee, any Holder of Trust Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the
Preferred Guarantee Trustee's rights under this Trust Preferred Securities
Guarantee, without first instituting a legal proceeding against the Issuer, the
Preferred 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 Holder of Trust Preferred Securities may directly institute
a proceeding against the Guarantor for enforcement of this Trust Preferred
Securities Guarantee for such payment.
Section 5.5 Guarantee of Payment.
--------------------
This Trust Preferred 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
Trust Preferred Securities against the Issuer in respect of any amounts paid to
such Holders by the Guarantor under this Trust Preferred 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 Trust Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Trust Preferred 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 Trust Preferred Securities,
and that the Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Trust Preferred Securities
Guarantee notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
13
<PAGE>
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1 Limitation of Transactions.
--------------------------
So long as any Trust Preferred 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) or the
satisfaction by the Guarantor of its obligations pursuant to any contract or
security requiring the Guarantor to purchase shares of the Guarantor's capital
stock (or capital stock equivalents), (ii) purchases of shares of the
Guarantor's capital stock (or capital stock equivalents) from officers,
directors or employees of the Guarantor or its subsidiaries pursuant to
employment agreements or upon termination of employment or retirement, (iii) 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, (iv) dividends or distributions of shares of common stock on common
stock, (v) 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, (vi)
[dividends or distributions on, or redemptions, purchases or acquisitions of, or
liquidation payments with respect to, the Guarantor's Preferred Stock,] (vii)
purchases or other acquisitions of common stock in connection with a dividend
reinvestment or other similar plan, or (viii) 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 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 the
foregoing (other than pursuant to this Trust Preferred Securities Guarantee or
the Common Securities Guarantee Agreement).
Section 6.2 Ranking.
-------
This Trust Preferred 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 except any liabilities
that may be pari passu expressly by their terms, [DELETE IF APPROPRIATE-(ii)
pari passu in right of payment with the most senior preferred or preference
stock now or hereafter issued by the Guarantor, if any, and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor,] and (iii) senior to the
Guarantor's common stock.
14
<PAGE>
ARTICLE VII
TERMINATION
Section 7.1 Termination.
-----------
This Trust Preferred Securities Guarantee shall terminate (i) upon full
payment of the redemption price of all Trust Preferred Securities, together with
all accumulated and unpaid Distributions thereon to but excluding the date of
redemption, [(ii) upon the conversion of the Trust Preferred Securities into Bay
View Common Stock or other securities or property as provided in the Declaration
or] upon the distribution of the Debentures to the Holders of all of the Trust
Preferred Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Trust Preferred Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Trust Preferred Securities must restore payment of any sums paid under the
Trust Preferred Securities or under this Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage,
liability, expense or claim 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 Trust Preferred 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
15
<PAGE>
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 Trust Preferred Securities
Guarantee or the resignation or removal of the Preferred Guaranteed Trustee.
When the Preferred Guarantee Trustee incurs expenses or renders services in
connection with an Event of Default specified in [Section 501(6) or Section
501(7)] of the Base 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 Trust Preferred 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 Trust Preferred 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 Trust Preferred Securities Guarantee without the prior
approval of the holders of at least a Majority in liquidation amount of the
Trust Preferred 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, 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 Trust Preferred 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 Trust Preferred
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 Trust Preferred 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 Trust Preferred 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 Trust Preferred
Securities Guarantee, any change which only eliminates or limits any of the
dividends, distributions, redemptions,
16
<PAGE>
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 Trust Preferred 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 Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the Trust
Preferred Securities):
^
^
^
Attn: ^
(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 Trust Preferred Securities):
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Attn: Chief Financial Officer
(c) If given to any Holder of Trust Preferred Securities, at the address
set forth on the books and records of the Issuer.
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 Trust Preferred Securities Guarantee is solely for the benefit of the
Holders of the Trust Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Trust Preferred Securities.
Section 9.5 Governing Law.
-------------
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
17
<PAGE>
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
18
<PAGE>
THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
BAY VIEW CAPITAL CORPORATION,
as Guarantor
By:_____________________________________
Name:___________________________________
Title:__________________________________
^,
as Preferred Guarantee Trustee
By:_____________________________________
Name:___________________________________
Title:__________________________________
19
<PAGE>
EXHIBIT 5(a)
LETTERHEAD OF SILVER, FREEDMAN & TAFF, L.L.P.
September 30, 1998
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Re: Registration Statement on Form S-3
Bay View Capital Corporation
----------------------------
Ladies and Gentlemen:
We have acted as special counsel to Bay View Capital Corporation (the
"Company") in connection with the preparation of a registration statement on
Form S-3 (the "Registration Statement") filed by the Company with the Securities
and Exchange Commission (the "Commission") on the date hereof relating to the
registration under the Securities Act of 1933, as amended (the "Act"), of (i)
the Company's unsecured senior debt securities, unsecured subordinated debt
securities and unsecured junior subordinated debt securities (collectively
"Debt Securities"); (ii) shares of the Company's serial preferred stock, par
value $.01 per share ("Preferred Stock"); (iii) depositary shares representing
fractional interests in shares of Preferred Stock ("Depositary Shares"); (iv)
shares of the Company's common stock, par value $.01 per share ("Common Stock");
(v) warrants to purchase shares of Common Stock ("Common Stock Warrants"); and
(vi) the Company's guarantees with respect to any preferred securities of a
trust ("Guarantees", and collectively with the Debt Securities, Preferred
Stock, Depositary Shares, Common Stock and Common Stock Warrants, the
"Securities"), which may be issued from time to time in one or more series
with an aggregate offering price not to exceed $500,000,000.
The laws covered by the opinions expressed herein are limited to the
federal laws of the United States of America and the laws of the States of
Delaware and New York. We assume no obligation to revise or supplement the
opinions expressed herein should such currently applicable laws be changed by
legislative action, judicial decision or otherwise. We express no opinion as to
the application of the securities or blue sky laws of the various states to the
sale of any of the Securities.
In rendering the opinions set forth herein, we have assumed and have not
verified the genuineness of all signatures; the authenticity of all documents
submitted to us as originals; the
<PAGE>
Bay View Capital Corporation
September 30, 1998
Page 2
conformity to the originals of all documents supplied to us as certified,
photostatic or conformed copies; the authenticity of the originals of all such
latter documents; and the accuracy and completeness of all corporate records and
documents and all certificates and statements of fact supplied or made available
to us by officers and representatives of the Company. We have also assumed
without investigation that each party to such documents and instruments has the
power and capacity to enter into and perform all its obligations under such
documents and instruments; duly authorized all requisite action with respect to
such documents and instruments; and duly executed and delivered such documents
and instruments.
We have examined (i) the Registration Statement and exhibits thereto, (ii)
the Certificate of Incorporation and the Bylaws of the Company as currently in
effect and (iii) such other records of the Company, certificates of the
Company's officers and public officials, and other documents as we have deemed
relevant.
Our opinions herein as to the binding nature of the obligations of the
Company with respect to certain of the Securities are subject to exception to
the extent that enforcement of such obligations may be limited by: (1)
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
similar laws now or hereafter in effect relating to or affecting the enforcement
of creditors' rights generally; (2) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity); (3)
requirements that a claim with respect to any Securities denominated other than
in United States dollars (or a judgment denominated other than in United States
dollars) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law; and (4) governmental
authority to limit, delay or prohibit the making of payments outside the United
States or in foreign currency or composite currency.
Based upon the foregoing and having regard for such legal considerations as
we have deemed relevant, we are of the opinion that:
1. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the indenture relating to such series of Offered Debt
Securities (the "Indenture") has been duly authorized, executed and delivered by
a trustee qualified to act as such thereunder; (ii) the Indenture has been
executed and delivered by the Company; (iii) the authorized officers of the
Company have taken all necessary corporate action to fix and determine the terms
of the Offered Debt Securities; (iv) the terms of the Offered Debt Securities
and of their issuance and sale have been duly established in conformity with the
Indenture so as not to violate any applicable law, the Company's Certificate of
Incorporation or Bylaws or result in a default under or breach of any agreement
or instrument binding upon the Company, and so as to comply with any court or
governmental body having jurisdiction over the Company; and (v) the Offered Debt
Securities have been duly executed and authenticated in accordance with the
terms of the Indenture and duly delivered to the purchasers thereof upon payment
of the agreed-upon consideration therefor, the issuance and sale of the Offered
<PAGE>
Bay View Capital Corporation
September 30, 1998
Page 3
Debt Securities will have been legally issued, and the Offered Debt Securities
will be binding obligations of the Company.
2. With respect to the shares of any series of Preferred Stock (the
"Offered Preferred Stock"), when (i) the authorized officers of the Company have
taken all necessary corporate action to fix and determine the terms of the
Offered Preferred Stock, including the adoption of a Certificate of Designation
for the Offered Preferred Stock in the form required by applicable law; (ii)
such Certificate of Designation has been duly filed with the Secretary of State
of the State of Delaware; (iii) the terms of the Offered Preferred Stock and of
their issuance and sale have been duly established so as not to violate any
applicable law, the Certificate of Incorporation or Bylaws or result in a
default under or breach of any agreement or instrument binding upon the
Company, and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company; (iv)
certificates representing the shares of the Offered Preferred Stock have been
manually signed by an authorized officer of the transfer agent and registrar
for the Offered Preferred Stock and registered by such transfer agent and
registrar, and delivered to the purchasers thereof; and (v) the Company has
received payment of the agreed-upon consideration for the Offered Preferred
Stock from the purchasers thereof, the shares of Offered Preferred Stock will
have been legally issued, and such shares will be fully paid and
nonassessable.
3. With respect to any Depositary Shares (the "Offered Depositary
Shares"), when (i) the authorized officers of the Company have taken all
necessary corporate action to fix and determine the terms of the Offered
Depositary Shares and the related series of Offered Preferred Stock, including
the adoption of a Certificate of Designation for such related series of
Offered Preferred Stock in the form required by applicable law; (ii) such
Certificate of Designation has been duly filed with the Secretary of State of
the State of Delaware; (iii) the terms of the Offered Depositary Shares and of
their issuance and sale have been duly established in conformity with the
applicable deposit agreement (the "Deposit Agreement") so as not to violate
any applicable law, the Company's Certificate of Incorporation or Bylaws or
result in a default under or breach of any agreement or instrument binding
upon the Company, and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the
Company; (iv) the Deposit Agreement has been duly executed and delivered; (v)
the related series of Offered Preferred Stock has been duly authorized and
validly issued in accordance with applicable law and delivered to the
applicable depositary (the "Depositary") for deposit in accordance with the
Deposit Agreement; and (vi) the receipts evidencing the Offered Depositary
Shares (the "Depositary Receipts") have been duly issued against deposit of
the related series of Offered Preferred Stock with the Depositary in
accordance with the Deposit Agreement, the Offered Depositary Shares will be
legally issued and the Depositary Receipts will entitle the holders thereof to
the rights specified therein and in the Deposit Agreement.
4. With respect to any shares of Common Stock (the "Offered Common
Stock"), when (i) certificates representing the shares of the Offered Common
Stock have been manually signed by an authorized officer of the transfer agent
and registrar for the Common Stock and registered by such
<PAGE>
Bay View Capital Corporation
September 30, 1998
Page 4
transfer agent and registrar, and delivered to the purchasers thereof; and (ii)
the Company has received payment of the agreed-upon consideration for the
Offered Common Stock from the purchases thereof, the shares of Offered Common
Stock will have been legally issued, and such Offered Common Stock will be fully
paid and nonassessable.
5. With respect to any Common Stock Warrants (the "Offered Common Stock
Warrants"), when (i) the authorized officers of the Company have taken all
necessary corporate action to fix and determine the terms of the Offered Common
Stock Warrants; (ii) the terms of the Offered Common Stock Warrants and of their
issuance and sale have been duly established so as not to violate any applicable
law, the Company's Certificate of Incorporation or By-laws or result in a
default under or breach of any agreement or instrument binding upon the Company,
and so as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; (iii) the applicable
warrant agreement has been duly executed and delivered; and (iv) the Offered
Common Stock Warrants have been duly executed and authenticated in accordance
with the terms of the applicable warrant agreement and duly delivered to the
purchasers thereof upon payment of the agreed-upon consideration therefor, the
Offered Common Stock Warrants will have been legally issued, and the Offered
Common Stock Warrants will be binding obligations of the Company.
6. With respect to any Guarantees (the "Offered Guarantees"), when (i) the
authorized officers of the Company have taken all necessary corporate action
to fix and determine the terms of the Offered Guarantees and a related
guarantee agreement; (ii) the terms of the Offered Guarantees have been
established so as not to violate any applicable law, the Company's Certificate
of Incorporation or Bylaws or result in a default under or breach of any
agreement or instrument binding upon the Company, and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company; (iii) the related guarantee agreement has been
executed and delivered by the Company and a trustee qualified under the Trust
Indenture Act of 1939 (the "1939 Act"), and is a binding obligation of that
trustee; (iv) the amended declaration of such trust shall have been
authorized, executed and delivered by, and shall constitute a binding and
enforceable agreement of, the parties thereto (including an institutional
trustee duly qualified under the 1939 Act); and (v) such preferred securities
and the common securities of such trust shall have been duly authorized,
validly issued, fully paid, and (in the case of such preferred securities)
nonassessable, and shall be undivided beneficial interests in the assets of
such trust, all in accordance with such guarantee agreement, such amended
declaration, and such corporate action, the Offered Guarantees will have been
legally issued and will be a binding obligation of the Company.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us in the prospectus forming a part thereof
under the caption "Legal Matters." In giving this consent, we do not admit that
we are within the category of persons whose consent is required under Section 7
of the Act, or the general rules and regulations of the Commission.
Very truly yours,
/s/ SILVER, FREEDMAN & TAFF, L.L.P.
SILVER, FREEDMAN & TAFF, L.L.P.
<PAGE>
EXHIBIT 5(b)
September 29, 1998
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Re: Bay View Capital I and Bay View Capital II
------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Bay View Capital
Corporation, a Delaware corporation (the "Company"), Bay View Capital I, a
Delaware business trust ("Trust I"), and Bay View Capital II, a Delaware
business trust ("Trust II," Trust I and Trust II are hereinafter collectively
referred to as the "Trusts" and sometimes hereinafter individually referred to
as a "Trust"), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust I, as filed with the office of
the Secretary of State of the State of Delaware (the "Secretary of State") on
September 28, 1998;
(b) The Certificate of Trust of Trust II, as filed with the Secretary
of State on September 28, 1998;
(c) The Trust Agreement of Trust I, dated as of September 16, 1998
among the Company and the trustees named therein;
(d) The Trust Agreement of Trust II, dated as of September 16, 1998
among the Company and the trustees named therein;
(e) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus") with respect to,
among other things, the Trust Preferred Securities of the Trusts representing
preferred undivided beneficial interests in the assets of the Trusts (each, a
"Preferred Security" and collectively, the "Preferred Securities"), to be filed
by the Company and the Trusts with the Securities and Exchange Commission;
<PAGE>
Bay View Capital Corporation
September 29, 1998
Page 2
(f) A form of Amended and Restated Declaration of Trust for each of
the Trusts (amending and restating each of the Trust Agreements), to be entered
into between the Company, the trustees of the Trust named therein, and the
holders, from time to time, of the undivided beneficial interests in the assets
of such Trust (including Exhibit A-1, Exhibit A-2 and Annex I thereto)
(together, the "Declarations" and individually, a "Declaration"), attached as an
exhibit to the Registration Statement; and
(g) A Certificate of Good Standing for each of the Trusts, dated
September 29, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declarations.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (g) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (g) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the
Declarations will constitute the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the applicable Trust, and that the Declarations and
the Certificates of Trust will be in full force and effect and will not be
amended, (ii) except to the extent provided in paragraph 1 below, the due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation, (iii) the legal capacity
of natural persons who are parties to the documents examined by us, (iv) that
each of the parties to the documents examined by us has the power and authority
to execute and deliver, and to perform its obligations under, such documents,
(v) the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trusts (collectively, the "Preferred Security
Holders") of a Preferred Security Certificate for such Preferred Security and
the payment for such Preferred Security, in accordance with the Declarations and
the Registration Statement, and (vii) that the Preferred Securities are
authenticated, issued and
<PAGE>
Bay View Capital Corporation
September 29, 1998
Page 3
sold to the Preferred Security Holders in accordance with the Declarations and
the Registration Statement. We have not participated in the preparation of the
Registration Statement or the Prospectus and assume no responsibility for their
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the applicable
Trust.
3. The Preferred Security Holders, as beneficial owners of the
applicable 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. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the
Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, PA
EAM
<PAGE>
EXHIBIT 12(A)
BAY VIEW CAPITAL CORPORATION
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
--------------------------------------------- ----------------
1993 1994 1995 1996 1997 1997 1998
-------- -------- -------- -------- -------- ------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings (loss) before
income tax expense.... $ 22,406 $ 22,341 $ (2,854) $ 19,246 $ 23,266 $17,133 $ 20,144
Add:
Interest on advances
and other borrowings. 53,775 63,977 67,149 60,548 78,424 36,533 45,538
Interest component of
rental expense
(estimated at 20% of
rental expense)...... 519 506 481 564 969 467 1,076
-------- -------- -------- -------- -------- ------- --------
Earnings before fixed
charges excluding
interest on customer
deposits............. 76,700 86,824 64,776 80,358 102,659 54,133 66,758
Interest on customer
deposits............ 68,075 66,424 93,398 100,225 76,484 38,139 78,597
-------- -------- -------- -------- -------- ------- --------
Earnings before fixed
charges............. $144,755 $153,248 $158,174 $180,583 179,143 92,272 145,355
======== ======== ======== ======== ======== ======= ========
Fixed Charges:
Interest on advances
and other borrowings.. $ 53,775 $ 63,977 $ 67,149 $ 60,548 78,424 36,533 45,538
Interest component of
rental expense
(estimated at 20% of
rental expense)....... 519 506 481 564 969 467 1,076
-------- -------- -------- -------- -------- ------- --------
Fixed charges excluding
interest on customer
deposits.............. 54,294 64,483 67,630 61,112 79,393 37,000 46,614
Interest on customer
deposits............ 68,075 66,424 93,398 100,225 76,484 38,139 78,597
-------- -------- -------- -------- -------- ------- --------
Total fixed charges.. $122,369 $130,907 $161,028 $161,337 $155,877 $75,139 $125,211
======== ======== ======== ======== ======== ======= ========
Ratio of earnings to
fixed charges including
interest on customer
deposits............... 1.18x 1.17x 0.98x 1.12x 1.15x 1.23x 1.16x
Ratio of earnings to
fixed charges excluding
interest on customer
deposits............... 1.41x 1.35x 0.96x 1.31x 1.29x 1.46x 1.43x
</TABLE>
- --------
Note: Earnings were inadequate to cover the fixed charges for the year ended
December 31, 1995. The amount of the deficiency was $2,853,710.
<PAGE>
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Bay View Capital Corporation, Bay View Capital I and Bay View Capital II,
on Form S-3 of our report dated January 26, 1998, appearing in the Annual
Report on Form 10-K of Bay View Capital Corporation for the year ended
December 31, 1997 and to the reference to us under the heading "Experts" in
the Prospectus, which is a part of this Registration Statement.
/s/ Deloitte & Touche llp
San Francisco, California
September 24, 1998
<PAGE>
EXHIBIT 23(b)
The Board of Directors
Bay View Capital Corporation:
We consent to the incorporation by reference in the prospectus/registration
statement on Form S-3 of Bay View Capital Corporation, Bay View Capital I and
Bay View Capital II of our report dated February 20, 1998, relating to the
consolidated balance sheets of America First Eureka Holdings, Inc. and
Subsidiary as of December 31, 1997 and 1996, and the related consolidated
statements of income, shareholder's equity and cash flows for each of the
years in the three-year period ended December 31, 1997, which report appears
in the Form 8-K of Bay View Capital Corporation dated September 30, 1998 and
to the reference to our firm under the heading "Experts" in the
prospectus/registration statement. Our report dated February 20, 1998 refers
to the consummation of a merger between Bay View Capital Corporation and
America First Eureka Holdings, Inc. and Subsidiary effective January 2, 1998.
/s/ KPMG Peat Marwick LLP
San Francisco, California
September 30, 1998
