As filed with the Securities and Exchange Commission on October 12, 1998
Registration No. 33-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
BOK FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Oklahoma 73-1373454
(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
Bank of Oklahoma Tower
Boston Avenue at Second Street
Tulsa, Oklahoma 74172
(918) 588-6000
(Address, including zip code, and telephone
number, including area code of registrant's principal
executive offices)
James A. White,
Executive Vice President and Chief Financial Officer
BOK FINANCIAL CORPORATION
Bank of Oklahoma Tower
Boston Avenue at Second Street
Tulsa, Oklahoma 74172
(918) 588-6416
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
Frederic Dorwart
Old City Hall
124 East Fourth Street
Tulsa, Oklahoma 74103
(918) 583-9922
Approximate date of commencement of proposed issuance to the public: As
soon as practicable after this Registration Statement becomes effective.
-------------------
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of each Amount offering aggregate Amount of
class of securities to be price offering Registration
to be registered registered 1/ per share 1/ price 1/ fee2/
- --------------------------------------------------------------------------------
Debt Securities $250,000,000 100% (1) $250,000,000 $73,750
1/ There are being registered hereunder such indeterminate principal amount of
Senior Debt Securities as shall have an aggregate initial offering price not to
exceed $250,000,000. The proposed maximum initial offering price per unit will
be determined, from time to time, by the Company in connection with the issuance
by the Company of the Securities registered hereunder.
2/ Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933.
================================================================================
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>i
BOK FINANCIAL CORPORATION
Cross Reference Sheet Showing Location in Prospectus of Information
Required to be included in Prospectus in Response to Items of Form S-3, Pursuant
to Item 501 of Regulation S-K.
Item # Form S-3 Item Caption in Prospectus
1. Forepart of Registration Statement
and Outside Front Cover of Prospectus...........Forepart and Outside Front
Cover
2. Inside Front and Outside Back
Cover Pages of Prospectus.......................Inside Front and Outside
Back Cover Pages;
Table of Contents
3. Summary Information, Risk Factors
and Ratio of Earnings to Fixed Charges..........Summary Information
Respecting BOK Financial
Corporation; Risk Factors;
Ratio of Earnings
to Fixed Charges
4. Use of Proceeds.................................Use of Proceeds
5. Determination of Offering Price.................Outside Front Cover Page;
Plan of Distribution
6. Dilution........................................Not Applicable
7. Selling Security Holders........................Not Applicable
8. Description of Securities to be Registered......Description of Senior Debt
Securities
9. Plan of Distribution............................Plan of Distribution
10.Interest of Named Experts and Counsel...........Legal Opinions; Experts
11.Material Changes................................Not Applicable
12.Incorporation of Certain
Information by Reference........................Where You Can Find More
Information
13.Disclosure of Commission Position on
Indemnification for Securities Act Liabilities..Not Applicable;See,Part II
<PAGE>ii
SUBJECT TO COMPLETION; PRELIMINARY PROSPECTUS
DATED OCTOBER 12, 1998
BOK FINANCIAL CORPORATION
Issuer
[BOKF LOGO] $250,000,000 Senior Debt Securities
- --------------------------------------------------------------------------------
Consider carefully the risk factors beginning on page 5 in this prospectus.
- --------------------------------------------------------------------------------
The Debt Securities will not be deposits and are not insured or guaranteed by
the Federal Deposit Insurance Corporation or any other governmental agency.
The securities do not represent the obligations of any bank.
This prospectus may be used to offer and sell any series of securities only if
accompanied by the prospectus supplement for that series.
BOK Financial Corporation will:
** issue one or more series of Senior Debt Securities
** in the form of debentures, notes, or other unsecured
evidences of indebtedness
** in an amount not to exceed a total of $250,000,000
** in definitive or global form
A prospectus supplement will further define the Senior Debt Securities by
stating:
** how the Senior Debt Securities will be sold
** the initial offering price
** the number of Senior Debt Securities being offered
** the names of any underwriters and agents and their compensation
** the net proceeds to BOK Financial of the sale
** the use BOK Financial will make of the proceeds
** the terms of the Senior Debt Securities including the
interest rates, maturities, redemption rights, puts and other
features
---------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------------------------
The common stock of BOK Financial is listed on the NASDAQ Stock
Exchange under the trading symbol "BOKF". BOK Financial does not plan to list
the Senior Debt Securities on NASDAQ or any other exchange.
<PAGE>iii
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS................................................1
WHERE YOU CAN FIND MORE INFORMATION..................................1
SUMMARY INFORMATION RESPECTING BOK FINANCIAL CORPORATION.............2
RISK FACTORS.........................................................3
DESCRIPTION OF SENIOR DEBT SECURITIES................................6
GLOBAL SECURITIES....................................................15
USE OF PROCEEDS......................................................17
PLAN OF DISTRIBUTION.................................................18
RATIO OF EARNINGS TO FIXED CHARGES...................................19
VALIDITY OF THE SENIOR DEBT SECURITIES...............................19
EXPERTS..............................................................19
<PAGE>1
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total dollar amount of $250,000,000. This prospectus
provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "WHERE YOU CAN
FIND MORE INFORMATION."
We are complying with the SEC's plain English program. This is an
initiative launched by the SEC to make prospectuses and other information more
understandable to the general investor. To see more detail, you should read the
exhibits filed with this registration statement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the SEC's Fort Worth Regional
Offices at 503 U. S. Courthouse, 10th and Lamar Streets, Forth Worth, Texas
76102 and at Listing Company Information, NASDAQ Stock Exchange, 9801 Washington
Blvd., Gaithersburg, Maryland 20878. You may send for a copy of such material
for a fee by writing the Securities and Exchange Commission Public Reference
Section, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549. Our SEC
filings are also available to the public over the Internet at the SEC's web site
at http://www.sec.gov. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms and Internet access.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities.
** Annual Report of the Company on Form 10-K for the fiscal year
ended December 31, 1997; and
** Quarterly Report on Form 10-Q for the fiscal quarters ended March
31, 1998 and June 30, 1998.
You may request a copy of these filings at no cost, by writing or telephoning us
at the following address:
<PAGE>2
Chief Financial Officer
BOK Financial Corporation
Bank of Oklahoma Tower
Tulsa, Oklahoma 74172
(918) 588-6752
[email protected]
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
SUMMARY INFORMATION
RESPECTING
BOK FINANCIAL CORPORATION
** Our home office is Tulsa, Oklahoma
** Our principal subsidiaries are Bank of Oklahoma N.A., Bank of
Texas N.A., Bank of Arkansas N.A., BOSC, Inc, BOK Capital
Services Corporation, and Bank of Texas Trust Company, N.A.
** We have a total of 2,448 employees
** We offer commercial, consumer and correspondent banking services
and investment and money market services
** Our BOk Trust Division offers trust services, employee benefit
services, investment advice, and asset management
** Our BOk Mortgage Division originates and services home loan
mortgages
** Our BOSC subsidiary is a registered NASD broker-dealer with 91
sales representatives
** The Leo Oppenheim Division of BOSC underwrites municipal revenue
bonds, asset-backed securities, and commercial paper and has
eight investment bankers and sales representatives
** Approximately 92 percent of our earnings are derived from Bank of
Oklahoma
<PAGE>3
** Bank of Oklahoma is headquartered in Oklahoma, has 62 locations
in Oklahoma, 2,302 employees, and approximately $3,486,957,000 in
deposits.
** Bank of Texas is headquartered in Dallas, Texas and has five
locations, 131 employees, and approximately $371,889,000 in
deposits.
** Bank of Arkansas is headquartered in Fayetteville, Arkansas and
has four locations, 36 employees, and approximately $86,011,000
in deposits.
** We have agreed, subject to regulatory approval, to organize a new
New Mexico national bank to be headquartered in Albuquerque, New
Mexico and called Bank of Albuquerque, with 17 bank branches, 230
employees, and approximately $500 million in deposits.
** We expect to close the New Mexico transaction in December, 1998.
RISK FACTORS
THE SENIOR DEBT SECURITIES INVOLVE A RISK OF LOSS OF PRINCIPAL AND INTEREST. YOU
SHOULD CONSIDER THE FOLLOWING RISK FACTORS IN DECIDING WHETHER TO PURCHASE THE
SENIOR DEBT SECURITIES.
Risk of Competition
** The banking industry is increasingly competitive
** In particular, the Oklahoma banking industry is highly
competitive and approximately 92% of our earnings are derived
from Bank of Oklahoma
** In 1997, NationsBank (now Bank America) and BancOne entered the
Oklahoma market
** We have to compete with numerous other small and large, local and
national savings and loan associations, banks, credit unions,
trust companies, broker-dealers, and underwriters
Risk of Supervision and Regulation
** We and our subsidiaries are extensively regulated under both
federal and state law, particularly the Bank Holding Company
Act of 1956 and the National Bank Act
<PAGE>4
** We are limited to the business of banking and related businesses
which prohibits us from expanding into certain types of
businesses which could be profitable for us
** Where we can do business and establish offices is regulated which
could decrease our ability to expand into new markets
** The amount of deposits we can own in each state is regulated
which limits our potential growth
** Our ability to make acquisitions and engage in new business may
be limited by the performance of our obligations under the
Community Reinvestment Act to provide services in traditionally
underserved areas
** We do not know the extent to which changes in the statutes and
regulations under we operate may adversely affect our business
and we do not have control over such changes
** Those of our competitors which are not banks are subject to
significantly less government regulation than we are which may
give them a competitive advantage in the market place
Risk of Regulatory Limitations on Payment of Dividends
** Our earnings will be the source of our ability to repay the
Senior Debt Securities
** Because we are a bank holding company, our earnings are
principally derived from dividends from our banks
** Regulations of the Comptroller of the Currency limit the ability
of our banks to pay us dividends by requiring that a bank receive
approval of the OCC before declaring a dividend if the amount of
all dividends, including the proposed dividend, declared by a
bank in any calendar year exceeds:
(1) the total of the bank's net profits of that calendar year to
date plus
(2) retained net profits of the preceding two years minus
(3) any required transfers to surplus or a fund for the
retirement of preferred stock
<PAGE>5
Risk of Capital Requirements
** The Federal Deposit Insurance Improvement Act of 1991 established
five capital rating tiers ranging from well capitalized to
critically undercapitalized
** We must maintain capital ratios above the well capitalized level
if we want to experience significant growth and acquire other
financial institutions and branches
** Well capitalized means a minimum of 5% for Leverage Capital, 6%
for Tier I Capital, and 10% for Total Capital
** At June 30, 1998, our ratios were 7.24% for Leverage Capital,
9.35% for Tier I Capital, and 14.15% for Total Capital
** At June 30, 1998, our subsidiary banks were also well above the
required minimum leverage and risk-based ratios, but if we fall
below these ratios, the growth potential of our business would be
limited
Risk of Government Policies and Economic Factors
Our business is highly sensitive to:
** changes in legislation and the policies and examinations of the
various regulatory authorities
** the monetary policies implemented by the Federal Reserve Board,
including the discount rate on bank borrowings and changes in
reserve requirements which affects our ability to make loans and
the interest rates we may charge
** open market operations in U.S. Government securities
** changes in prevailing interest rates because of the dependency of
our banks on
interest income
** We cannot predict the effect of such matters on our business and
earnings
Risk of Lack of Marketability
** We cannot guarantee a secondary market for our Senior Debt
Securities or that holders who wish to sell their Senior Debt
Securities prior to the stated maturity will be able to do so
<PAGE>6
** We do not plan to list the Senior Debt Securities for trading on
any exchange or other trading market
Risk of Year 2000 Problems
** We, and our service providers, are having to modify or replace
significant portions of our and their computer software and
hardware to ensure that our systems will function correctly in
the Year 2000 and thereafter
** We have made good progress and do not foresee any significant
operational problems with our systems or those of our service
providers; however, if we or our service providers do not timely
complete the required modifications and replacements, we could
experience a material adverse impact on our business and earnings
DESCRIPTION OF SENIOR DEBT SECURITIES
This description of the Senior Debt Securities does not purport to be
complete and is subject to, and qualified in its entirety by reference to, the
indentures pursuant to which such Senior Debt Securities are issued, the forms
of which indentures are filed as exhibits to the registration statement of which
this prospectus is a part. Furthermore, the following summary description of the
indentures and the Senior Debt Securities relates to certain terms and
conditions applicable to the Senior Debt Securities generally. The particular
terms of any series of Senior Debt Securities will be described in the
applicable prospectus supplement. If so indicated in such prospectus supplement,
the terms of any such series may differ from the terms set forth below.
General
Senior Debt Securities are to be issued under an indenture (the
"Indenture") between BOK Financial Corporation and the trustee named in the
applicable prospectus supplement as the trustee therefor (the "Trustee"). The
form of Indenture is an exhibit to the registration statement of which this
prospectus is a part.
The Senior Debt Securities will be direct, unsecured obligations of BOK
Financial Corporation. The Senior Debt Securities will not be deposits or other
obligations of a bank and will not be guaranteed or insured by the FDIC or any
other governmental agency.
<PAGE>7
The Indenture does not limit the aggregate principal amount of Senior
Debt Securities or of any particular series of Senior Debt Securities that may
be issued thereunder and provide that Senior Debt Securities issued thereunder
may be issued from time to time in one or more series, in each case with the
same or various maturities, at par or at a discount. The Indenture does not
limit the amount of other debt that may be issued by BOK Financial Corporation
and does not contain financial or similar restrictive covenants. The Indenture
does not prohibit or limit the incurrence of additional senior indebtedness or
other financial obligations. The Indenture provides that there may be more than
one Trustee under such Indenture with respect to different series of Senior Debt
Securities.
The Indenture does not contain any provision intended to provide
protection to holders of Senior Debt Securities against a sudden or dramatic
decline in credit quality of BOK Financial Corporation that could, for example,
result from a takeover, recapitalization, special dividend or other
restructuring.
The applicable prospectus supplement will describe the following terms
of the series of Senior Debt Securities in respect of which this prospectus is
being delivered:
(1) the title of such Senior Debt Securities;
(2) any limit upon the aggregate principal amount of such Senior
Debt Securities and the percentage of such principal amount at
which such Senior Debt Securities may be issued;
(3) the date or dates on which the principal of such Senior Debt
Securities is scheduled to become payable (the "Stated
Maturity");
(4) the rate or rates (which may be fixed or variable) per annum
at which such Senior Debt Securities will bear interest, or
the method of determining such rate or rates, if any, the date
or dates from which any such interest will accrue, the dates
on which any such interest will be payable (the "Interest
Payment Dates"), the Regular Record Date (as defined in the
Indenture) for the interest payable on any Interest Payment
Date, and the person to whom principal of or premium, if any,
or interest on any Senior Debt Security of such series will be
payable, if other than the person in whose name such Senior
Debt Security (or one or more predecessor Senior Debt
Securities) is registered at the close of business on the
Regular Record Date for such interest;
(5) if other than the location specified in this prospectus, the
place or places where the principal of and premium, if any,
and interest on Senior Debt Securities will be payable;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which such Senior Debt
Securities will, pursuant to any mandatory sinking fund
provisions or otherwise, or may, pursuant to any optional
sinking fund provisions or otherwise, be redeemed in whole or
in part by BOK Financial Corporation;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which such Senior Debt
Securities may be repaid, in whole or in part, at the option
of the holders thereof;
<PAGE>8
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which such Senior Debt
Securities will be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of such Senior Debt Securities that will be
payable upon declaration of acceleration of the maturity
thereof;
(10) the currency or currency unit of payment of principal of and
premium, if any, and interest on such Senior Debt Securities,
and any index used to determine the amount of principal of or
premium, if any, and interest on such Senior Debt Securities;
(11) whether such Senior Debt Securities are to be issuable as
Global Securities (as defined below) and, in such case, the
initial securities depositary with respect thereto and the
circumstances under which such Global Security may be
exchanged for definitive securities; and
(12) any other material terms of such Senior Debt Securities.
Form, Registration and Transfer
Unless otherwise indicated in the applicable prospectus supplement,
principal of, and premium, if any, and interest, if any, on Senior Debt
Securities will be payable, and Senior Debt Securities will be transferable, at
the agency or office of BOK Financial Corporation maintained for such purpose in
the Borough of Manhattan, The City of New York, except that interest may be paid
at the option of BOK Financial Corporation by check mailed to the address of the
holder entitled thereto as it appears on the applicable Security Register (as
defined in the applicable Indenture).
Unless otherwise indicated in the applicable prospectus supplement,
Senior Debt Securities will be issued only in fully registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. The
Indentures provide that Senior Debt Securities of any series may be issuable in
permanent global form. See "GLOBAL SECURITIES" below. No service charge will be
made for any registration of transfer or exchange of the Senior Debt Securities,
but BOK Financial Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Limitation on Disposition of Voting Stock of Principal Subsidiary Banks
<PAGE>9
The Indenture contains a covenant by BOK Financial Corporation that it
will not sell, assign, transfer, grant a security interest in or otherwise
dispose of any shares of, securities convertible into or options, warrants or
rights to subscribe for or purchase shares of, Voting Stock (as defined below)
(other than directors' qualifying shares) of any Principal Subsidiary Bank (as
defined below) and that it will not permit any Principal Subsidiary Bank to
issue (except to BOK Financial Corporation) any shares of, securities
convertible into, or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock of any Principal Subsidiary Bank, except for sales,
assignments, transfers, grants of security interests or other dispositions that:
(1) are for fair market value on the date thereof, as determined
by the Board of Directors of BOK Financial Corporation (which
determination shall be conclusive) and, after giving effect to
such disposition and to any possible dilution, BOK Financial
Corporation will own not less than 80% of the shares of Voting
Stock of such Principal Subsidiary Bank then issued and
outstanding free and clear of any security interest;
(2) are made in compliance with an order of a court or regulatory
authority of competent jurisdiction, as a condition imposed by
any such court or authority permitting the acquisition by BOK
Financial Corporation, directly or indirectly, of any other
bank or entity the activities of which are legally permissible
for a bank holding company or a subsidiary thereof to engage
in, or as an undertaking made to such authority in connection
with such an acquisition;
(3) are made where such Principal Subsidiary Bank, having obtained
any necessary regulatory approvals, unconditionally guarantees
payment when due of the principal of and premium, if any, and
interest on the Senior Debt Securities; or
<PAGE>10
(4) are made to BOK Financial Corporation or any Wholly-Owned
Subsidiary (as defined in the Indenture) if such Wholly-Owned
Subsidiary agrees to be bound by this covenant and BOK
Financial Corporation agrees to maintain such Wholly-Owned
Subsidiary as a Wholly-Owned Subsidiary. Notwithstanding the
foregoing, any Principal Subsidiary Bank may be merged into or
consolidated with another banking institution organized under
the laws of the United States, any State thereof or the
District of Columbia if, after giving effect to such merger or
consolidation, BOK Financial Corporation or any Wholly- Owned
Subsidiary owns at least 80% of the Voting Stock of such other
banking institution then issued and outstanding free and clear
of any security interest and if, immediately after giving
effect thereto and treating any such resulting banking
institution thereafter as such Principal Subsidiary Bank and
as a Subsidiary for purposes of the Indenture, no Event of
Default, and no event that, after the giving of notice or
lapse of time or both, would become an Event of Default, has
occurred and is continuing. A "Principal Subsidiary Bank" is
defined in the Indenture to mean any Subsidiary (as defined in
the Indenture) that is a bank and has total assets equal to
30% or more of the consolidated assets of BOK Financial
Corporation determined as of the date of the most recent
audited financial statements of such entities. At present, the
only Principal Subsidiary Bank is the Bank of Oklahoma,
National Association. "Voting Stock" is defined in the
Indenture to mean stock of the class or classes having general
voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of
such corporation (irrespective of whether or not at the time
stock of any other class or classes will have contingent
voting rights).
Consolidation, Merger and Sale of Assets
The Indenture provides that BOK Financial Corporation may not
consolidate with or merge into any other person or transfer its properties and
assets substantially as an entirety to any person unless:
(1) the person formed by such consolidation or into which BOK
Financial Corporation is merged or the person to which the
properties and assets of BOK Financial Corporation are so
transferred is a corporation, partnership or trust organized
and validly existing under the laws of the United States, any
State thereof or the District of Columbia and expressly
assumes by a supplemental indenture the payment of the
principal of and premium, if any, and interest on the Senior
Debt Securities, as the case may be, and the performance of
the other covenants of BOK Financial Corporation under the
applicable Indenture;
(2) immediately after giving effect to such transaction, no Event
of Default or Default (as defined below), as applicable, and
no event that, after notice or lapse of time or both, would
become an Event of Default or Default, as applicable, has
occurred and is continuing; and
(3) certain other conditions are met.
Defaults
An "Event of Default" is defined in the Indenture, with respect to
Senior Debt Securities of any series issued thereunder, as:
(1) default in the payment of principal of or premium, if any, on any
Debt Security of that series at maturity;
(2) default for 30 days in the payment of interest on any Debt
Security of that series;
(3) default in the deposit of any sinking fund payment when due in
respect of that series;
<PAGE>11
(4) default in the performance, or breach, of any other covenant
or warranty of BOK Financial Corporation in the Indenture or
in the Senior Debt Securities of that series, continued for 60
days after written notice to BOK Financial Corporation by the
Trustee or to BOK Financial Corporation and the Trustee by the
holders of not less than 25% of the aggregate principal amount
of the outstanding Senior Debt Securities of that series;
(5) failure to pay when due any indebtedness of BOK Financial
Corporation or any Principal Subsidiary Bank for borrowed
money in excess of $5,000,000, or acceleration of the maturity
of any such indebtedness in excess of such amount if
acceleration results from a default under the instrument
giving rise to such indebtedness and is not annulled within 60
days after due notice, unless in either case such default is
contested in good faith by appropriate proceedings;
(6) certain events of bankruptcy, insolvency or reorganization of
BOK Financial Corporation or any Principal Subsidiary Bank;
and
(7) any other Event of Default that may be provided for with
respect to Senior Debt Securities of that series.
The Indenture provides that, if any Event of Default with respect to
Senior Debt Securities of any series at the time outstanding thereunder occurs
and is continuing, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the outstanding Senior Debt Securities of that
series may declare the principal amount of all Senior Debt Securities of that
series to be due and payable immediately (provided that no such declaration is
required upon certain events of bankruptcy, insolvency or reorganization), but
upon certain conditions such declaration may be annulled and past defaults
(except, unless theretofore cured, a default in payment of principal of or
premium, if any, or interest on the Senior Debt Securities of that series and
certain other specified defaults) may be waived by the holders of a majority in
principal amount of the outstanding Senior Debt Securities of that series on
behalf of the holders of all Senior Debt Securities of that series. In the event
of the bankruptcy, insolvency or reorganization of BOK Financial Corporation,
the claims of holders of the Senior Debt Securities would be subject as to
enforcement to the broad equity power of a United States Bankruptcy Court, and
to the determination by that court of the nature of the rights of such holders.
The Indenture contains a provision entitling the Trustee, subject to
the duty of the Trustee upon the occurrence and continuation of an Event of
Default to act with the required standard of care, to be indemnified by the
holders of any series of outstanding Senior Debt Securities thereunder before
proceeding to exercise any right or power under the Indenture at the request of
the holders of such series of Senior Debt Securities. The Indenture provides
that the holders of a majority in aggregate principal amount of outstanding
Senior Debt Securities of any series thereunder may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or other power conferred on the Trustee, with respect to
the Senior Debt Securities of such series, provided that the Trustee may decline
to act if such direction is contrary to law or the Indenture or would involve
the Trustee in personal liability.
<PAGE>12
BOK Financial Corporation will file annually with the Trustee a
certificate as to compliance with all conditions and covenants in the Indenture.
Defeasance and Discharge
The Indenture provides that the terms of any series of Senior Debt
Securities issued thereunder may provide that BOK Financial Corporation may
terminate certain of its obligations under such Indenture with respect to the
Senior Debt Securities of such series on the terms and subject to the conditions
contained in such Indenture, by (a) depositing irrevocably with the applicable
Trustee as trust funds in trust:
(1) in the case of Senior Debt Securities denominated in a foreign
currency, money in such foreign currency or Foreign Government
Obligations (as defined below) of the foreign government or
governments issuing such foreign currency,
(2) in the case of Senior Debt Securities denominated in U.S.
dollars, U.S. dollars or U.S. Government Obligations (as
defined below), in each case in an amount that through the
payment of interest, principal or premium, if any, in respect
thereof in accordance with their terms will provide (without
any reinvestment of such interest, principal or premium), not
later than one business day before the due date of any
payment, money, or
(3) a combination of money and U.S. Government Obligations or
Foreign Government Obligations, as applicable, sufficient to
pay the principal of or premium, if any, and interest on, the
Senior Debt Securities of such series as such are due.
and (b) satisfying certain other conditions precedent specified in the
applicable Indenture. Such deposit and termination is conditioned, among other
things, upon BOK Financial Corporation's delivery of (a) an opinion of
independent counsel that the holders of the Senior Debt Securities of such
series will have no federal income tax consequences as a result of such deposit
and termination and (b) if the Senior Debt Securities of such series are then
listed on an exchange, an opinion of counsel that the Senior Debt Securities of
such series will not be delisted as a result of the exercise of this option.
Such termination will not relieve BOK Financial Corporation of its obligation to
pay when due the principal of, and interest on the Senior Debt Securities of
such series if the Senior Debt Securities of such series are not paid from the
money, Foreign Government Obligations or U.S.Government Obligations held by the
applicable Trustee for payment thereof.
<PAGE>13
"U.S. Government Obligations" means securities that are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (2) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, that, in either case, under
clauses (1) or (2) are not callable or redeemable at the option of the issuer
thereof. "Foreign Government Obligations" means securities denominated in a
foreign currency that are (1) direct obligations of a foreign government for the
payment of which its full faith and credit is pledged or (2) obligations of a
person controlled or supervised by and acting as an agency or instrumentality of
a foreign government the payment of which is unconditionally guaranteed as a
full faith and credit obligation by such foreign government, that, in either
case, under clauses (1) or (2) are not callable or redeemable at the option of
the issuer thereof.
The applicable prospectus supplement will state whether any defeasance
provisions of the applicable Indenture will apply to the Senior Debt Securities
offered thereby.
Modification and Waiver
Certain modifications and amendments of each of the Indentures may be
made by BOK Financial Corporation and the applicable Trustee only with the
consent of the holders of not less than a majority in aggregate principal amount
of the outstanding Senior Debt Securities of each series issued under such
Indenture and affected by the modification or amendment, provided that no such
modification or amendment may, without the consent of the holder of each
outstanding Debt Security issued under such Indenture and affected thereby:
(1) change the Stated Maturity (as defined in the applicable
indenture) of the principal of, or any installment of
principal of or interest on, any such Debt Security;
(2) reduce the principal amount of, or the premium, if any, or the
interest, if any, on, any such Debt Security;
(3) change the place of payment where, or the coin or currency or
currency unit in which, any principal of, or premium, if any,
or interest on, any such Debt Security is payable;
(4) 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 (as
defined in the applicable Indenture));
(5) reduce the above-stated percentage of outstanding Senior Debt
Securities of any series the consent of the holders of which
is necessary to modify or amend the applicable Indenture; or
(6) modify the foregoing requirements or reduce the percentage of
aggregate principal amount of outstanding Senior Debt
Securities of any series required to be held by holders
seeking to waive compliance with certain provisions of the
applicable Indenture or seeking to waive certain defaults.
<PAGE>14
The holders of not less than a majority in aggregate principal amount
of the outstanding Senior Debt Securities of any series may on behalf of the
holders of all Senior Debt Securities of that series waive, insofar as that
series is concerned, compliance by BOK Financial Corporation with certain
restrictive provisions of the applicable Indenture. The holders of not less than
a majority in aggregate principal amount of the outstanding Senior Debt
Securities of any series may on behalf of the holders of all Senior Debt
Securities of that series waive any past default under the applicable Indenture
with respect to that series, except a default in the payment of the principal
of, or premium, if any, or interest on, any Debt Security of that series or in
respect of a covenant or provision that under the applicable Indenture cannot be
modified or amended without the consent of the holder of each outstanding Debt
Security issued thereunder of the series affected.
Certain modifications and amendments of each of the Indentures may be
made by BOK Financial Corporation and the applicable Trustee without the consent
of holders of the outstanding Senior Debt Securities issued under such
Indenture.
Each Indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding Senior Debt Securities issued
under such Indenture have given any request, demand, authorization, direction,
notice, consent or waiver thereunder or are present at a meeting of holders of
Senior Debt Securities for quorum purposes, the principal amount of a Debt
Security denominated in a foreign currency or currency unit will be the U.S.
dollar equivalent, determined on the date of original issuance of such Debt
Security, of the principal amount of such Debt Security or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent, determined on the
date of original issuance of such Debt Security, of the amount determined as
provided above.
Title
BOK Financial Corporation, the applicable Trustee and any agent of BOK
Financial Corporation or the applicable Trustee may treat the registered owner
of any Debt Security as the absolute owner thereof (whether or not such Debt
Security is overdue and notwithstanding any notice to the contrary) for the
purpose of making payment and for all other purposes. See "GLOBAL SECURITIES"
below.
Replacement of Senior Debt Securities
Any mutilated Debt Security will be replaced by BOK Financial
Corporation at the expense of the holder upon surrender of such Debt Security to
the applicable Trustee. Senior Debt Securities that are destroyed, lost or
stolen will be replaced by BOK Financial Corporation at the expense of the
holder upon delivery to the applicable Trustee of evidence of the destruction,
loss or theft thereof satisfactory to BOK Financial Corporation and the
applicable Trustee. In the case of a destroyed, lost or stolen Debt Security, an
indemnity satisfactory to the applicable Trustee and BOK Financial Corporation
may be required at the expense of the holder of such Debt Security before a
replacement Debt Security will be issued.
<PAGE>15
Governing Law
The Indentures and the Senior Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York.
Concerning the Trustees
The Trustee will be named in the applicable prospectus supplement.
Any Trustee may resign or be removed with respect to one or more series
of Senior Debt Securities and a successor Trustee may be appointed to act with
respect to such series. If two or more persons are acting as Trustee with
respect to different series of Senior Debt Securities, each such Trustee will be
a Trustee of a trust under the related Indenture separate and apart from the
trust administered by any other such Trustee, and any action described herein to
be taken by the "Trustee" may then be taken by each such Trustee with respect
to, and only with respect to, the one or more series of Senior Debt Securities
for which it is Trustee.
In the ordinary course of business, BOK Financial Corporation and its
subsidiaries may conduct banking transactions with a Trustee, and such Trustee
and its affiliates may conduct banking transactions with BOK Financial
Corporation and its subsidiaries.
Ratings
Particular series of Senior Debt Securities may be rated by one or more
nationally recognized statistical rating agencies. the rating agency or agencies
and rating or ratings to be assigned with respect to a series of Senior Debt
Securities will be specified in the prospectus supplement for the series of
Senior Debt Securities.
GLOBAL SECURITIES
Unless otherwise specified in the applicable prospectus supplement, the
Senior Debt Securities will be issued in the form of one or more global
certificates (collectively, with respect to each series or issue of Securities,
the "Global Security") registered in the name of a depositary or a nominee of a
depositary. Unless otherwise specified in the applicable prospectus supplement,
the depositary will be The Depository Trust Company ("DTC"). BOK Financial
Corporation has been informed by DTC that its nominee will be Cede & Co.
("Cede"). Accordingly, Cede is expected to be the initial registered holder of
all Senior Debt Securities that are issued in global form. No person that
acquires a beneficial interest in such Senior Debt Securities will be entitled
to receive a certificate representing such person's interest in the Senior Debt
Securities except as set forth herein or in the applicable prospectus
supplement. Unless and until definitive Senior Debt Securities are issued under
the limited circumstances described below, all references to actions by holders
of Senior Debt Securities issued in global form shall refer to actions taken by
DTC upon instructions from its Participants (as defined below), and all
references herein to payments and notices to holders shall refer to payments and
notices to DTC or Cede, as the registered holder of such Senior Debt Securities.
<PAGE>16
DTC is a company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, that it is a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to Section 17A of the Exchange Act, and was created to hold
securities for its participating organizations ("Participants") and to
facilitate the clearance and settlement of securities transactions among
Participants through electronic book-entry, thereby eliminating the need for
physical movement of certificates. Participants include securities brokers and
dealers, banks, trust companies and clearing corporations, and may include
certain other organizations. Indirect access to the DTC system also is available
to others such as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a Participant, either directly or
indirectly ("Indirect Participants").
Persons that are not Participants or Indirect Participants but desire
to purchase, sell or otherwise transfer ownership of, or other interests in
Senior Debt Securities may do so only through Participants and Indirect
Participants. Under a book-entry format, holders may experience some delay in
their receipt of payments, as such payments will be forwarded by the agent
designated by BOK Financial Corporation to Cede, as nominee for DTC. DTC will
forward such payments to its Participants, which thereafter will forward them to
Indirect Participants or holders. Holders will not be recognized by BOK
Financial Corporation or by the applicable registrar, transfer agent, Trustee or
Depositary, or their agents, as registered holders of the Senior Debt Securities
entitled to the benefits of the applicable Indenture. Beneficial owners that are
not Participants will be permitted to exercise their rights as such only
indirectly through and subject to the procedures of Participants and, if
applicable, Indirect Participants.
Under the rules, regulations and procedures creating and affecting DTC
and its operations as currently in effect (the "Rules"), DTC will be required to
make book-entry transfers of Senior Debt Securities among Participants and to
receive and transmit payments to Participants. Participants and Indirect
Participants with which beneficial owners of Senior Debt Securities have
accounts with respect to the Senior Debt Securities similarly are required by
the Rules to make book-entry transfers and receive and transmit such payments on
behalf of their respective account holders.
Because DTC can act only on behalf of Participants, who in turn act
only on behalf of Participants or Indirect Participants, and on behalf of
certain banks, trust companies and other persons approved by it, the ability of
a beneficial owner of Senior Debt Securities issued in global form to pledge
such Senior Debt Securities to persons or entities that do not participate in
the DTC system, or to otherwise act with respect to such Senior Debt Securities,
may be limited due to the unavailability of physical certificates for such
Senior Debt Securities.
<PAGE>17
DTC has advised BOK Financial Corporation that DTC will take any action
permitted to be taken by a registered holder of any Senior Debt Securities under
the applicable Indenture only at the direction of one or more Participants to
whose accounts with DTC such Senior Debt Securities are credited.
Unless otherwise specified in the applicable prospectus supplement, a
Global Security will be exchangeable for the relevant definitive Senior Debt
Securities registered in the names of persons other than DTC or its nominee only
if (1) DTC notifies BOK Financial Corporation that it is unwilling or unable to
continue as depository for such Global Security or if at any time DTC ceases to
be a clearing agency registered under the Exchange Act at a time when DTC is
required to be so registered in order to act as such depository, (2) BOK
Financial Corporation determines that such Global Security shall be so
exchangeable or (3) there has occurred and is continuing an Event of Default or
an event that, with the giving of notice or lapse of time, or both, would
constitute an Event of Default with respect to such Senior Debt Securities. Any
Global Security that is exchangeable pursuant to the preceding sentence will be
exchangeable for Senior Debt Securities registered in such names as DTC directs.
Upon the occurrence of any event described in the immediately preceding
paragraph, DTC is generally required to notify all Participants of the
availability through DTC of definitive Senior Debt Securities. Upon surrender by
DTC of the Global Security representing the Securities and delivery of
instructions for re-registration, the registrar, transfer agent, Trustee or
Depositary, as the case may be, will reissue the Senior Debt Securities as
definitive Senior Debt Securities, and thereafter such persons will recognize
the holders of such definitive Senior Debt Securities as registered holders of
Senior Debt Securities entitled to the benefits of the applicable Indenture.
Except as described above, a Global Security may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or to a successor depositary appointed by BOK Financial
Corporation. Except as described above, DTC may not sell, assign, transfer or
otherwise convey any beneficial interest in a Global Security evidencing all or
part of any Senior Debt Securities unless such beneficial interest is in an
amount equal to an authorized denomination for such Senior Debt Securities.
USE OF PROCEEDS
We will use the proceeds of the sale of the Senior Debt Securities for:
** acquisitions
** capital improvements
** repayment of short term bank borrowings
** start-up of new banking and bank related businesses
** expansion of existing business
** general working capital
<PAGE>18
We will tell you in the prospect supplement for what purpose we plan to
use the proceeds of any particular series of the Senior Debt Securities.
PLAN OF DISTRIBUTION
We may sell the offered securities (a) through agents; (b) through
underwriters or dealers; or (c) directly to one or more purchasers.
By Agents
Offered securities may be sold through agents designated by us. The
agents agree to use their reasonable best efforts to solicit purchases for the
period of their appointment.
By Underwriters
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account. The underwriters may resell
the securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase the securities will be
subject to certain conditions. The underwriters will be obligated to purchase
all the securities of the series offered if any of the securities are purchased.
Any initial public offering price and any discounts or concessions allowed or
re-allowed or paid to dealers may be changed from time to time.
Direct Sales
Offered securities may also be sold directly by us. In this case, no
underwriters or agents would be involved.
General Information
Underwriters, dealers and agents that participate in the distribution
of the offered securities may be underwriters as defined in the Securities Act
of 1933 (the "Act"), and any discounts or commissions received by them from us
and any profit on the resale of the offered securities by them may be treated as
underwriting discounts and commissions under the Act. Any underwriters or agents
will be identified and their compensation described in a prospectus supplement.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Act, or to contribute with respect to payments which the underwriters,
dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us or our subsidiaries in the ordinary course of their
businesses.
<PAGE>19
RATIO OF EARNINGS TO FIXED CHARGES
Six Months
Ended Year Ended December 31,
June 30, 1998 1997 1996 1995 1994 1993
------------- ---- ---- ---- ---- ----
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits 2.68 2.21 2.54 2.02 2.81 6.80
Including Interest on Deposits 1.55 1.43 1.43 1.40 1.57 1.73
These computations include BOK Financial Corporation and its
subsidiaries. For these ratios, "earnings" are determined by adding "fixed
charges" income taxes to income from continuing operations. "Fixed charges"
consist of interest on all debt and amortization of premiums or discounts
associated with debt.
VALIDITY OF THE SENIOR DEBT SECURITIES
Unless otherwise indicated in the applicable prospectus supplement, the
validity of and Senior Debt Securities offered hereby will be passed upon for
BOK Financial Corporation by its counsel, Frederic Dorwart, Esquire, Tulsa,
Oklahoma.
EXPERTS
The consolidated financial statements of BOK Financial Corporation
incorporated by reference in BOK Financial Corporation's Annual Report (Form
10-K) for the year ended December 31, 1997 have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report incorporated by
reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
<PAGE>20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
--------------------------------------
Item 14. Other Expenses of Issuance and Distribution
The following are the estimated expenses to be incurred by BOK
Financial Corporation in connection with the Offer described in this
Registration Statement:
SEC registration fee.................................$ 73,750
Printing and engraving expense....................... 20,000
Fees and expenses of transfer agent................... 5,000
Accounting fees and expenses...........................25,000
Legal fees and expenses............................... 20,000
Miscellaneous....................................... 5,000
Total...........................................$148,750
Item 15. Indemnification of Directors and Officers
The Oklahoma Business Corporation Act and Article VI of the Bylaws of
BOK Financial Corporation provide BOK Financial Corporation with broad powers
and authority to indemnify its directors and officers and to purchase and
maintain insurance for such purposes. Pursuant to such statutory and Bylaw
provisions, BOK Financial Corporation has purchased insurance against certain
costs of indemnification of its officers and directors.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
Exhibit # Description of Exhibits
1.0 Form of Underwriting Agreement
3.0 The Articles of Incorporation of BOK Financial Corporation, incorporated by
reference to (i) Amended and Restated Certificate of Incorporation of BOK
Financial Corporation filed with the Oklahoma Secretary of State on May 28,
1991, filed as Exhibit 3.0 to S-1 Registration Statement No. 33-90450, and
(ii) Amendment attached as Exhibit A to Information Statement and
prospectus supplement filed November 20, 1991.
3.1 Bylaws of BOK Financial Corporation, incorporated by reference to Exhibit
3.1 of S-1 Registration Statement No. 33-90450.
4.0 The rights of the holders of the Common Stock and Preferred Stock of BOK
Financial Corporation are set forth in its Certificate of Incorporation.
4.1 Form of Senior Debt Indenture.
<PAGE>21
5.0 Opinion of Frederic Dorwart, Lawyers regarding validity of Senior Debt
Securities.
23.0 Consent of independent auditors - Ernst & Young LLP.
27.0 Financial Data Schedule for ended December 31, 1997, incorporated by
reference to Exhibit 27.0 of Form 10-K for the fiscal year ended December
31, 1997
27.1 Restated Financial Data Schedule, incorporated by reference to Exhibit 27.1
of Form 10-Q for the fiscal quarter ended June 30, 1998
99.0 Additional Exhibits.
99.1 Undertakings incorporated by reference into S-8 Registration Statement No.
33-44121 for Bank of Oklahoma Master Thrift Plan and Trust, incorporated by
reference to Exhibit 99.1 of Form 10-K for the fiscal year ended December
31, 1993.
99.2 Undertakings incorporated by reference into S-8 Registration Statement No.
33-44122 for BOK Financial Corporation 1991 Special Stock Option Plan,
incorporated by reference to Exhibit 99.2 of Form 10-K for the fiscal year
ended December 31, 1993.
99.3 Undertakings incorporated by reference into S-8 Registration Statement No.
33-55312 for BOK Financial Corporation 1992 Stock Option Plan, incorporated
by reference to Exhibit 99.3 of Form 10-K for the fiscal year ended
December 31, 1993.
99.4 Undertakings incorporated by reference into S-8 Registration Statement No.
33-70102 for BOK Financial Corporation 1993 Stock Option Plan, incorporated
by reference to Exhibit 99.4 of Form 10-K for the fiscal year ended
December 31, 1993.
99.5 Undertakings incorporated by reference into S-8 Registration Statement No.
33-79834 for BOK Financial Corporation 1994 Stock Option Plan, incorporated
by reference to Exhibit 99.5 of Form 10-K for the fiscal year ended
December 31, 1994.
99.6 Undertakings incorporated by reference into S-8 Registration Statement No.
33-79836 for BOK Financial Corporation Directors' Stock Compensation Plan,
incorporated by reference to Exhibit 99.6 of Form 10-K for the fiscal year
ended December 31, 1994.
99.7 Undertakings incorporated by reference into S-8 Registration Statement No.
33-32642 for BOK Financial Corporation 1997 Stock Option Plan, Incorporated
by reference to Exhibit 99.7 of Form 10-K for the fiscal year ended
December 31, 1997.
<PAGE>22
(b) Financial Statement Schedules.
All schedules either are not applicable or the information required thereby
is included in the financial statements or notes thereto.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the registration statement. Notwithstanding
the foregoing, any increase or decrease in the 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 and
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii)To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the 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 therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
<PAGE>23
(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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
of whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee in respect of
the Indenture and the Subordinated Indenture to act 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 Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement or Amendment to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Tulsa, State of Oklahoma, on October 12, 1998.
BOK FINANCIAL CORPORATION
By /s/ George B. Kaiser
____________________________________
GEORGE B. KAISER,
Chairman of the Board of Directors
<PAGE>24
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to the Registration Statement has been signed below by the
following persons in the capacities and on the date indicated.
Signature Title Date
/s/ George B. Kaiser Chairman of the Board October 13, 1998
George B. Kaiser of BOK Financial Corporation
/s/ Stanley A. Lybarger President, Chief Executive October 13, 1998
Stanley A. Lybarger Officer, and Director of
BOK Financial Corporation
/s/ James A. White Executive Vice President, October 13, 1998
James A. White Chief Financial Officer,
and Treasurer of BOK
Financial Corporation
/s/ John C. Morrow Controller of BOK October 13, 1998
John C. Morrow Financial Corporation
/s/ W. Wayne Allen Director of BOK Financial October 13, 1998
W. Wayne Allen Corporation
/s/ James E. Barnes Director of BOK Financial October 13, 1998
James E. Barnes Corporation
/s/ Sharon J. Bell Director of BOK Financial October 13, 1998
Sharon J. Bell Corporation
/s/ Glenn A. Cox Director of BOK Financial October 13, 1998
Glenn A. Cox Corporation
<PAGE>25
/s/ Robert H. Donaldson Director of BOK Financial October 13, 1998
Robert H. Donaldson Corporation
/s/ William E. Durrett Director of BOK Financial October 13, 1998
William E. Durrett Corporation
/s/ James O. Goodwin Director of BOK Financial October 13, 1998
James O. Goodwin Corporation
/s/ V. Burns Hargis Director of BOK Financial October 13, 1998
V. Burns Hargis Corporation
/s/ Howard E. Janzen Director of BOK Financial October 13, 1998
Howard E. Janzen Corporation
/s/ E. Carey Joullian IV Director of BOK Financial October 13, 1998
E. Carey Joullian IV Corporation
/s/ Robert J. LaFortune Director of BOK Financial October 13, 1998
Robert J. LaFortune Corporation
/s/ Philip C. Lauinger Director of BOK Financial October 13, 1998
Philip C. Lauinger Corporation
/s/ David R. Lopez Director of BOK Financial October 13, 1998
David R. Lopez Corporation
/s/ John Massey Director of BOK Financial October 13, 1998
John Massey Corporation
Director of BOK Financial October 13, 1998
- -----------------------------Corporation
Frank A. McPherson
/s/ Steve E. Moore Director of BOK Financial October 13, 1998
Steve E. Moore Corporation
<PAGE>26
/s/ J. Larry Nichols Director of BOK Financial October 13, 1998
J. Larry Nichols Corporation
Director of BOK Financial October 13, 1998
- ----------------------------Corporation
Robert L. Parker, Sr.
/s/ James W. Pielsticker Director of BOK Financial October 13, 1998
James W. Pielsticker Corporation
/s/ E.C. Richards Director of BOK Financial October 13, 1998
E.C. Richards Corporation
/s/ James A. Robinson Director of BOK Financial October 13, 1998
James A. Robinson Corporation
Director of BOK Financial October 13, 1998
- ----------------------------Corporation
L. Francis Rooney
/s/ David J. Tipeconnic Director of BOK Financial October 13, 1998
David J. Tippeconnic Corporation
Director of BOK Financial October 13, 1998
- ----------------------------Corporation
Tom E. Turner
Director of BOK Financial October 13, 1998
- --------------------------- Corporation
Robert L. Zemanek
<PAGE>27
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes George B.
Kaiser and James A. White, or either of them, to file one or more amendments
(including post-effective amendments) to Registration Statement number
______________, which amendments may make such changes in the Registration
Statement as Mr. Kaiser or Mr. White deems appropriate, and each such person
hereby appoints George B. Kaiser and James A. White, or either of them, as
attorney-in-fact to execute in the name and on behalf of each person
individually, and in each capacity stated below, any such amendment to the
Registration Statement.
Signature Title Date
/s/ George B. Kaiser Chairman of the Board October 13, 1998
George B. Kaiser of BOK Financial Corporation
/s/ Stanley A. Lybarger President, Chief Executive October 13, 1998
Stanley A. Lybarger Officer, and Director of
BOK Financial Corporation
/s/ James A. White Executive Vice President, October 13, 1998
James A. White Chief Financial Officer,
and Treasurer of BOK
Financial Corporation
/s/ John C. Morrow Controller of BOK October 13, 1998
John C. Morrow Financial Corporation
/s/ W. Wayne Allen Director of BOK Financial October 13, 1998
W. Wayne Allen Corporation
/s/ James E. Barnes Director of BOK Financial October 13, 1998
James E. Barnes Corporation
/s/ Sharon J. Bell Director of BOK Financial October 13, 1998
Sharon J. Bell Corporation
<PAGE>28
/s/ Glenn A. Cox Director of BOK Financial October 13, 1998
Glenn A. Cox Corporation
/s/ Robert H. Donaldson Director of BOK Financial October 13, 1998
Robert H. Donaldson Corporation
/s/ William E. Durrett Director of BOK Financial October 13, 1998
William E. Durrett Corporation
/s/ James O. Goodwin Director of BOK Financial October 13, 1998
James O. Goodwin Corporation
/s/ V. Burns Hargis Director of BOK Financial October 13, 1998
V. Burns Hargis Corporation
/s/ Howard E. Janzen Director of BOK Financial October 13, 1998
Howard E. Janzen Corporation
/s/ E. Carey Joullian IV Director of BOK Financial October 13, 1998
E. Carey Joullian IV Corporation
/s/ Robert J. LaFortune Director of BOK Financial October 13, 1998
Robert J. LaFortune Corporation
/s/ Philip C. Lauinger Director of BOK Financial October 13, 1998
Philip C. Lauinger Corporation
/s/ David R. Lopez Director of BOK Financial October 13, 1998
David R. Lopez Corporation
/s/ John Massey Director of BOK Financial October 13, 1998
John Massey Corporation
Director of BOK Financial October 13, 1998
- ---------------------------- Corporation
Frank A. McPherson
<PAGE>29
/s/ Steve E. Moore Director of BOK Financial October 13, 1998
Steve E. Moore Corporation
/s/ J. Larry Nichols Director of BOK Financial October 13, 1998
J. Larry Nichols Corporation
Director of BOK Financial October 13, 1998
- ---------------------------- Corporation
Robert L. Parker, Sr.
/s/ James W. Pielsticker Director of BOK Financial October 13, 1998
James W. Pielsticker Corporation
/s/ E.C. Richards Director of BOK Financial October 13, 1998
E.C. Richards Corporation
/s/ James A. Robinson Director of BOK Financial October 13, 1998
James A. Robinson Corporation
Director of BOK Financial October 13, 1998
- ---------------------------- Corporation
L. Francis Rooney
/s/ David J. Tipeconnic Director of BOK Financial October 13, 1998
David J. Tippeconnic Corporation
Director of BOK Financial October 13, 1998
- ---------------------------- Corporation
Tom E. Turner
Director of BOK Financial October 13, 1998
- ---------------------------- Corporation
Robert L. Zemanek
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
1.0 Form of Underwriting Agreement
4.1 Form of Senior Debt Indenture
5.0 Opinion of Frederic Dorwart, Lawyers
23.0 Consent of Independent Auditors - Ernst & Young LLP
EXHIBIT 1.0
Underwriting Agreement
<PAGE>ii
UNDERWRITING AGREEMENT
Dated as of ________ __, 19__
TABLE OF CONTENTS
SECTION 1. Representations and Warranties....................................2
(a) Representations and Warranties by the Company.............2
(i) Compliance with Registration Requirements........2
(ii) Incorporated Documents...........................3
(iii) Independent Accountants..........................3
(iv) Financial Statements.............................3
(v) No Material Adverse Change in Business...........4
(vi) Good Standing of the Company.....................4
(vii) Good Standing of Subsidiaries....................4
(viii) Capitalization...................................5
(ix) Authorization of Agreement.......................5
(x) Authorization and Description of Securities......5
(xi) Absence of Defaults and Conflicts................5
(xii) Absence of Labor Dispute.........................6
(xiii) Absence of Proceedings...........................6
(xiv) Exhibits.........................................6
(xv) Absence of Further Requirements..................6
(xvi) Possession of Licenses and Permits...............7
(xvii) Title to Property................................7
(xviii) Environmental Laws...............................8
(ix) Not an Investment Company........................8
(b) Officer's Certificates....................................8
SECTION 2. Sale and Delivery to Underwriters; Closing........................8
(a) Securities................................................8
(b) Payment...................................................8
(c) Denominations; Registration...............................9
SECTION 3. Covenants of the Company..........................................9
(a) Compliance with Securities Regulations and
Commission Requests.......................................9
(b) Filing of Amendments......................................9
(c) Delivery of Registration Statements......................10
(d) Delivery of Prospectuses.................................10
<PAGE>iii
(e) Continued Compliance with Securities Laws................10
(f) Blue Sky Qualifications..................................10
(g) Rule 158 11
(h) Restriction on Sale of Securities........................11
(i) Reporting Requirements...................................11
SECTION 4. Payment of Expenses..............................................11
(a) Expenses 11
(b) Termination of Agreement.................................12
SECTION 5. Conditions of Underwriters' Obligations..........................12
(a) Effectiveness of Registration Statement..................12
(b) Opinion of Counsel for Company...........................12
(c) Opinion of Counsel for Underwriters......................12
(d) Officers' Certificate....................................12
(e) Accountant's Comfort Letter..............................13
(f) Bring-down Comfort Letter................................13
(g) No Objection.............................................13
(h) Additional Documents.....................................13
(j) Termination of Agreement.................................13
SECTION 6. Indemnification 14
(a) Indemnification by the Company...........................14
(b) Indemnification by the Underwriters......................15
(c) Actions against Parties; Notification....................15
SECTION 7. Contribution.....................................................16
SECTION 8. Representations, Warranties and Agreements to Survive Delivery...17
SECTION 9. Termination of Agreement.........................................17
(a) Termination; General.....................................17
(b) Liabilities..............................................18
SECTION 10. Default by One or More of the Underwriters...............18
SECTION 11. Default by the Company...................................18
SECTION 12. Notices..................................................18
SECTION 13. Parties..................................................19
<PAGE>iv
SECTION 14. Governing Law and Time...................................19
SECTION 15. Effect of Headings.......................................19
<PAGE>1
UNDERWRITING AGREEMENT
______________, 199_
[NAME]
as Representative of the several Underwriters
[ADDRESS]
Ladies and Gentlemen:
BOK Financial Corporation, an Oklahoma corporation (the "Company"),
confirms its agreement with [Name]("[Name]") and each of the other Underwriters
named in Schedule A hereto (collectively, the "Underwriters," which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom [Name] is acting as representative (in such capacity, the
"Representative"), with respect to the purchase by the Underwriters, acting
severally and not jointly, of $______ principal amount of the [Title of Senior
Debt Securities] (the "Securities") of the Company, to be issued pursuant to the
provisions of an Indenture, dated as of ______________, 199_ (the "Indenture"),
between the Company and ____________, as Trustee (the "Trustee").
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-_________) covering
the registration of Senior Debt Securities of the Company, including the
Securities, from time to time in accordance with Rule 415 under the Securities
Act of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus."
<PAGE>2
Such registration statement, including the exhibits thereto, schedules thereto,
if any, and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, at the time it became effective and including
the Rule 430A Information and the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities, is
herein called the "Prospectus." If Rule 434 is relied on, the term "Prospectus"
shall refer to the preliminary prospectus dated ___, 199_ together with the Term
Sheet, and all references in this Agreement to the date of the Prospectus shall
mean the date of the Term Sheet.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933
Act; no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated
by the Commission and any request on the part of the
Commission for additional information has been complied with.
<PAGE>3
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time,
the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or
supplement was filed and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or
will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule
434. The representations and warranties in this subsection
shall not apply to (i) statements in or omissions from the
Registration Statement, any post- effective amendment to the
Registration Statement, the Prospectus or any amendment or
supplement to the Prospectus made in reliance upon and in
conformity with information furnished to the Company in
writing by any Underwriter through [Name] expressly for use in
the Registration Statement, the Prospectus or any such
amendment or supplement or (ii) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") of the Trustee.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects
with the 1933 Act and the 1933 Act Regulations.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time, did not and
will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
such statements were made, not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in
the Registration Statement are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
<PAGE>4
(iv) Financial Statements. The consolidated statements of
financial condition, consolidated statements of income,
consolidated statements of changes in stockholders' equity and
consolidated statements of cash flows included in the
Registration Statement and the Prospectus, together with the
related schedules and notes (the "Financial Statements"),
present fairly in all material respects the consolidated
financial position, results of operations, changes in
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries at the dates indicated and, for the
periods specified, as the case may be, subject in the case of
unaudited balance sheets and statements to normal year-end
audit adjustments; said Financial Statements have been
prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout
the periods involved, except as may be noted therein, subject
in the case of unaudited balance sheets and statements to
normal year-end audit adjustments and the limited scope of the
notes thereto.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change,
or development involving a prospective material adverse
change, in the financial condition, results of operation or
stockholders' equity of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or
any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and
(C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its
capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its
properties and to conduct its business in all material
respects as described in the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company
is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
<PAGE>5
(vii) Good Standing of Subsidiaries. The Bank of Oklahoma,
National Association, Bank of Texas, National Association, and
Bank of Arkansas, National Association (the "Banks") have been
duly organized and are validly existing as national banking
associations; the Banks' deposit accounts are insured up to
applicable limits by the Federal Deposit Insurance
Corporation; and no proceeding for the termination or
revocation of such insurance is pending or, to the knowledge
of the Company or the Banks, threatened. The Banks and BOSC,
Inc. are the only "significant subsidiaries" of the Company
(as such term is defined in Rule 1-02 of Regulation S-X) and
each has power and authority to own, lease and operate its
properties and to conduct its business in all material
respects as described in the Prospectus and is duly qualified
to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of
the Bank has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly
or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of the
Bank was issued in violation of the preemptive or similar
rights of any security holder of such Subsidiary.
(viii) Capitalization. The Company had at the date indicated a
duly authorized and outstanding capitalization as set forth in
the Registration Statement.
(ix) Authorization of Agreement and Indenture. This Agreement
has been duly authorized, executed and delivered by the
Company. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles
of equity.
(x) Authorization and Description of Securities. The
Securities have been duly authorized and, when issued and
authenticated in accordance with the provisions of the
Indenture and delivered against payment therefor as provided
herein, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity.
The Securities conform to the description thereof under the
heading "Description of Senior Debt Securities" contained in
the Prospectus and such description, insofar as it purports to
be a summary of the instruments defining the rights of holders
of the Securities, is accurate, complete and fair in all
material respects.
<PAGE>6
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement
and the Indenture and the consummation of the transactions
contemplated herein, in the Indenture and in the Registration
Statement (including the issuance and sale of the Securities)
and compliance by the Company with its obligations hereunder
and under the Indenture have been duly authorized by all
necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, default or
Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government,
governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any
of their assets or properties. As used herein, a "Repayment
Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not
aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in
either case, may reasonably be expected to result in a
Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any subsidiary, which is
required to be disclosed in the Registration Statement (other
than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect (other than as
disclosed in the Registration Statement), or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof (other than as disclosed in the
Registration Statement) or the consummation of the
transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder.
(xiv) Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein,
or to be filed as exhibits thereto, which have not been so
described or filed as required.
<PAGE>7
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order,
registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for
the performance by the Company of its obligations hereunder,
in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws.
(xvi) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity
of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xvii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property reflected
in the most recent balance sheet included in the Prospectus as
owned by the Company and its subsidiaries and good title to
all other properties reflected in the most recent balance
sheet included in the Prospectus as owned by them, in each
case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of
any kind except such as (a) are described in the Prospectus or
(b) do not, singly or in the aggregate, materially interfere
with the use made and proposed to be made of such property by
the Company or any of its subsidiaries or, with respect to any
such real property, render title unmarketable as to a material
part thereof; and all of the leases and subleases material to
the business of the Company and its subsidiaries, considered
as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are
in full force and effect, and neither the Company nor any
subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
<PAGE>8
(xiii) Environmental Laws. Except as described in the
Registration Statement or except as would not, singly or in
the aggregate, result in a Material Adverse Effect: (A)
neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or
protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B)
the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any
of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the
basis of an order for clean-up or redemption, or an action,
suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(ix) Not an Investment Company. The Company is not an
"investment company" or a company "controlled by" an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriters as to the matters covered thereby, without
personal liability for the officer signing such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the principal amount of Securities set forth
in Schedule A opposite the name of the Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
<PAGE>9
(b) Payment. Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company against
delivery by the Company to the Representative for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. The
time and date of such payment and delivery shall be 10:00 A.M. (Eastern time) on
the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any
given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Representative and
the Company (such time and date of payment and delivery being herein called the
"Closing Time"). It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities that it has agreed to
purchase. [Name], individually and not as representative of the Underwriters,
may (but shall not be obligated to) make payment of the purchase price for the
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities shall
be in such denominations and registered in such names as the Representative may
request in writing at least one full business day before the Closing Time. The
certificates for the Securities will be made available for examination and
packaging by the Representative in The City of [New York] not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representative promptly, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
<PAGE>10
(b) Filing of Amendments. The Company will give the Representative
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representative with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representative or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representative, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations to the extent necessary to permit the completion of the distribution
of the Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of the
Underwriters or the Company, based upon advice of counsel, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or if it shall be necessary, in the opinion of such
party, based upon the advice of counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
<PAGE>11
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Representative may designate and to maintain such qualifications in
effect for as long as may be necessary to complete the distribution of
Securities provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) Restriction on Sale of Securities. During a period beginning on the
date hereof and continuing to and including the Closing Time, the Company will
not, without the prior written consent of [Name], directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any Senior Debt Securities
substantially similar to the Securities, except that the foregoing sentence
shall not apply to (A) the Securities to be sold hereunder and (B) commercial
paper issued in the ordinary course of business.
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations and the Company will cause the Bank to file all documents required
to be filed with any supervisory, regulatory, administrative or governmental
agency, body or authority, whether pursuant to the 1934 Act and the 1934 Act
Regulations or otherwise (except reports to any bank or thrift regulatory
agencies prepared on a confidential basis), except when the failure to file such
documents could not reasonably be expected to result, directly or indirectly, in
a Material Adverse Effect.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company covenants and agrees with the several
Underwriters that (a) the Company will pay the following expenses incident to
this Agreement: (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, (iv) the
fees and disbursements of the Company's counsel, accountants and other advisors,
(v) the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the fees and expenses of any transfer agent or
registrar for the Securities, (viii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities and (ix)
any fees payable in connection with the rating of the Securities.
<PAGE>12
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company shall reimburse the Underwriters for all of
their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy, as of the
Closing Time, of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder to
be performed at or prior to the Closing Time, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representative
shall have received the favorable opinion, dated as of Closing Time, of Frederic
Dorwart, Lawyers, General Counsel for the Company, in each instance in form and
substance reasonably satisfactory to counsel for the Underwriters, collectively
to the effect set forth in Exhibit A hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of [Name], counsel for the Underwriters, with respect to such matters as
they may reasonably request. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States, and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representative. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
<PAGE>13
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change, or development involving a
prospective material adverse change, in the financial condition, results of
operations or stockholders' equity of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representative shall have received a certificate signed by the
President or a Vice President of the Company and by the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representative
shall have received from Ernst and Young LLP a letter, dated as of Closing Time,
to the effect that it reaffirms the statements made in the letter furnished
pursuant to subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(g) No Objection. The NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(h) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance to
the Representative and counsel for the Underwriters.
(j) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4, and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
<PAGE>14
SECTION 6. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act to the extent and in the manner as set forth below:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such
settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
[Name]), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid
under (i) or (ii) above; provided, however, that this
indemnity agreement shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter
through [Name], expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or
any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto); and provided further that the
foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom
the person asserting any such loss, liability, claim or damage
<PAGE>15
purchased Securities if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented by the Company if the Company shall
have furnished any amendments or supplements thereto) and a
copy of the Prospectus (as so amended or supplemented), which
at such time had been provided to the Underwriters for their
use, shall not have been furnished to such person at or prior
to the written confirmation of sale of such Securities to such
person.
(b) Indemnification by the Underwriters. Each Underwriter severally
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, and the Company, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through [Name] expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by [Name], and in the case
of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
<PAGE>16
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party (other than pursuant to the terms thereof) in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
<PAGE>17
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of the Securities to
the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change, or development involving a prospective material adverse
change, in the financial condition, results of operations or stockholders'
equity of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
material change or development involving a prospective material change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the NASDAQ National Market has been suspended or limited,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv)
if a banking moratorium has been declared by either Federal or New York
authorities.
<PAGE>18
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6 and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then: (a) if the number of
Defaulted Securities does not exceed 10% of the number of Securities to be
purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or (b) if the
number of Defaulted Securities exceeds 10% of the number of Securities to be
purchased on such date, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Company shall have the right
to postpone Closing Time, for a period not exceeding seven days, in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Default by the Company. If the Company shall make such
delivery but the Company shall fail to deliver the Securities to the
Representative, then the Underwriters may, at the option of the Representative,
by notice from the Representative to the Company, terminate this Agreement
without any liability on the fault of any non-defaulting party except that the
provisions of Sections 1, 4, 6 and 7 shall remain in full force and effect. No
action taken pursuant to this Section 11 shall relieve the defaulting party from
liability, if any, in respect of such default.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at ____________________,
attention of ___________________; notices to the Company shall be directed to
Chief Financial Officer, Bank of Oklahoma, National Association, P.O. Box 2300,
Tulsa, Oklahoma 74192 and Frederic Dorwart, Lawyers, Old City Hall, 124 East
Fourth Street, Tulsa, Oklahoma 74103-5010.
<PAGE>19
SECTION 13. Parties. This Agreement shall inure to the benefit of and
be binding upon each of the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO OKLAHOMA TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company [ ] counterparts hereof,
whereupon this agreement, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
BOK FINANCIAL CORPORATION
By __________________________________________
Name:
Title:
<PAGE>20
CONFIRMED AND ACCEPTED, as of the date first above written:
[NAME]
By _______________________ Authorized Signatory
For itself and as Representative of the other Underwriters named in
Schedule A hereto.
<PAGE>21
EXHIBIT A
OPINION OF THE COMPANY'S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
The opinions of special counsel for the Company referred to in Section
5(b) collectively shall be substantially to the following effect:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Oklahoma. The Company has the requisite corporate power and
authority to conduct its business in all material respects as
described in the Prospectus.
(ii) The Securities have been duly authorized and validly issued
and are fully paid and nonassessable.
(iii) The statements set forth under the heading "Description of
Senior Debt Securities" in the Prospectus, insofar as such
statements purport to be a summary of the instruments defining
the rights of holders of the Securities is accurate, complete
and fair in all material respects.
(iv) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the
Federal laws of the United States, the laws of the State of
Oklahoma and the General Corporation Law of the State of
Oklahoma for the issuance, sale and delivery of the Securities
by the Company have been obtained or made.
(v) The issuance of the Securities by the Company hereunder does
not (a) violate the Company's certificate of incorporation or
by-laws, (b) result in a default under or breach of the
agreements listed in Annex A to this opinion or (c) violate
any Federal law of the United States or law of the State of
Oklahoma applicable to the Company; provided, however, that,
for purposes of this paragraph (vi), such counsel need not
express an opinion with respect to Federal or state securities
laws, other antifraud laws or fraudulent transfer laws.
(vi) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company. The Indenture has been duly
qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in
accordance with its term, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
<PAGE>22
In addition, such counsel shall state that they have reviewed the
Registration Statement and the Prospectus, participated in discussions with the
Representative and the representatives of the Company and its accountants and
that, on the basis of the information gained in such discussions, the
Registration Statement, as of the date it became effective, and the Prospectus,
as of the date of the Prospectus, appeared on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act and the
1933 Act Regulations. Further, such counsel shall confirm that nothing that came
to their attention in the course of the aforementioned review has caused them to
believe that the Registration Statement, as of the date it became effective,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date of the Prospectus
and as of the Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
are such, however, that such counsel shall not be required to assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those made
under the captions "Description of Senior Debt Securities" and "Underwriting" in
the Prospectus insofar as they relate to provisions of documents therein
described. Also, such counsel need not express any opinion or belief as to the
financial statements or other financial data contained in the Registration
Statement of the Prospectus.
EXHIBIT 4.1
BOK Financial Corporation
Unsecured Senior Debt Securities
<PAGE>ii
BOK FINANCIAL CORPORATION
to
--------------------
Trustee
INDENTURE
Dated as of ________, ____
UNSECURED SENIOR DEBT SECURITIES
<PAGE>i
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE TRUST
INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 310 (a)(1).....................................................609
(a)(2).....................................................609
(a)(3)..........................................Not Applicable
(a)(4)..........................................Not Applicable
(b)...................................................608, 610
(S) 311 (a)........................................................613
(b)........................................................613
(S) 312 (a)...................................................701, 702
(b)........................................................702
(c)........................................................702
(S) 313 (a)........................................................703
(b)........................................................703
(c)........................................................703
(d)........................................................703
(S) 314 (a)........................................................704
(a)(4)...............................................101, 1004
(b).............................................Not Applicable
(c)(1).....................................................102
(c)(2).....................................................102
(c)(3)..........................................Not Applicable
(d).............................................Not Applicable
(e)........................................................102
(S) 315 (a)........................................................601
(b)........................................................602
(c)........................................................601
(d)........................................................601
(e)........................................................514
(S) 316 (a)........................................................101
(a)(1)(A).............................................502, 512
(a)(1)(B)..................................................513
(a)(2)..........................................Not Applicable
(b)........................................................508
(c)........................................................104
(S) 317 (a)(1).....................................................503
(a)(2).....................................................504
(b).......................................................1003
(S) 318 (a)........................................................107
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>ii
TABLE OF CONTENTS
Page
Parties......................................................................1
Recitals of the Company......................................................1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions:
Act.........................................................2
Affiliate; control..........................................2
Authenticating Agent........................................2
Bank........................................................2
Board of Directors..........................................2
Board Resolution............................................2
Business Day................................................2
Commission..................................................2
Company.....................................................2
Company Request; Company Order..............................2
Corporate Trust Office......................................3
Corporation.................................................3
Covenant Defeasance.........................................3
Defaulted Interest..........................................3
Defeasance..................................................3
Depositary..................................................3
Event of Default............................................3
Exchange Act................................................3
Expiration Date.............................................3
Foreign Government Obligation...............................3
Global Security.............................................3
Holder......................................................3
Indenture...................................................3
Interest....................................................3
Interest Payment Date.......................................3
Investment Company Act......................................4
Maturity....................................................4
Notice of Default...........................................4
Officers' Certificate.......................................4
Opinion of Counsel..........................................4
Original Issue Discount Security............................4
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>iii
Outstanding.................................................4
Paying Agent................................................5
Person......................................................5
Place of Payment............................................5
Predecessor Security........................................5
Principal Subsidiary Bank...................................5
Redemption Date.............................................5
Redemption Price............................................5
Regular Record Date.........................................6
Responsible Officer.........................................6
Securities..................................................6
Securities Act..............................................6
Security Register and Security Registrar....................6
Special Record Date.........................................6
Stated Maturity.............................................6
Subsidiary..................................................6
Trust Indenture Act.........................................6
Trustee.....................................................6
U.S. Government Obligation..................................7
Vice President..............................................7
Voting Stock................................................7
Wholly-Owned Subsidiary.....................................7
Section 102 Compliance Certificates and Opinions........................7
Section 103 Form of Documents Delivered to Trustee......................7
Section 104 Acts of Holders; Record Dates...............................8
Section 105 Notices, Etc., to Trustee and Company......................10
Section 106 Notice to Holders; Waiver..................................10
Section 107 Conflict with Trust Indenture Act..........................11
Section 108 Effect of Headings and Table of Contents...................11
Section 109 Successors and Assigns.....................................11
Section 110 Separability Clause........................................11
Section 111 Benefits of Indenture......................................11
Section 112 Governing Law..............................................11
Section 113 Legal Holidays.............................................12
ARTICLE TWO
Security Forms
Section 201 Forms Generally............................................12
Section 202 Form of Face of Security...................................13
Section 203 Form of Reverse of Security................................15
Section 204 Form of Legend for Global Securities.......................18
Section 205 Form of Trustee's Certificate of Authentication............18
<PAGE>iv
ARTICLE THREE
The Securities
Section 301 Amount Unlimited; Issuable in Series.......................19
Section 302 Denominations..............................................21
Section 303 Execution, Authentication, Delivery and Dating.............21
Section 304 Temporary Securities.......................................23
Section 305 Registration, Registration of Transfer and Exchange........23
Section 306 Mutilated, Destroyed, Lost and Stolen Securities...........25
Section 307 Payment of Interest; Interest Rights Preserved.............26
Section 308 Persons Deemed Owners......................................27
Section 309 Cancellation...............................................27
Section 310 Computation of Interest....................................27
ARTICLE FOUR
Satisfaction and Discharge
Section 401 Satisfaction and Discharge of Indenture....................27
Section 402 Application of Trust Money.................................28
ARTICLE FIVE
Remedies
Section 501 Events of Default..........................................29
Section 502 Acceleration of Maturity; Rescission and Annulment.........31
Section 503 Collection of Indebtedness and Suits for
Enforcement by Trustee.....................................32
Section 504 Trustee May File Proofs of Claim...........................32
Section 505 Trustee May Enforce Claims Without Possession
of Securities..............................................33
Section 506 Application of Money Collected.............................33
Section 507 Limitation on Suits........................................33
Section 508 Unconditional Right of Holders to Receive Principal,
Premium and Interest.......................................34
Section 509 Restoration of Rights and Remedies.........................34
Section 510 Rights and Remedies Cumulative.............................34
Section 511 Delay or Omission Not Waiver...............................34
Section 512 Control by Holders.........................................35
Section 513 Waiver of Past Defaults....................................35
Section 514 Undertaking for Costs......................................35
Section 515 Waiver of Usury, Stay or Extension Laws....................35
ARTICLE SIX
The Trustee
Section 601 Certain Duties and Responsibilities........................38
Section 602 Notice of Defaults.........................................38
<PAGE>v
Section 603 Certain Rights of Trustee..................................36
Section 604 Not Responsible for Recitals or Issuance of Securities.....37
Section 605 May Hold Securities........................................38
Section 606 Money Held in Trust........................................38
Section 607 Compensation and Reimbursement.............................38
Section 608 Conflicting Interests......................................38
Section 609 Corporate Trustee Required; Eligibility....................38
Section 610 Resignation and Removal; Appointment of Successor..........39
Section 611 Acceptance of Appointment by Successor.....................40
Section 612 Merger, Conversion, Consolidation or Succession
to Business................................................41
Section 613 Preferential Collection of Claims Against Company..........42
Section 614 Appointment of Authenticating Agent........................44
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701 Company to Furnish Trustee Names and Addresses
of Holders.................................................43
Section 702 Preservation of Information; Communications
to Holders.................................................44
Section 703 Reports by Trustee.........................................44
Section 704 Reports by Company.........................................44
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801 Company May Consolidate, Etc., Only on Certain Terms.......44
Section 802 Successor Substituted......................................45
ARTICLE NINE
Supplemental Indentures
Section 901 Supplemental Indentures Without Consent of Holders.........46
Section 902 Supplemental Indentures With Consent of Holders............47
Section 903 Execution of Supplemental Indentures.......................48
Section 904 Effect of Supplemental Indentures..........................48
Section 905 Conformity with Trust Indenture Act........................48
Section 906 Reference in Securities to Supplemental Indentures.........48
ARTICLE TEN
Covenants
Section 1001 Payment of Principal, Premium and Interest.................49
Section 1002 Maintenance of Office or Agency............................49
Section 1003 Money for Securities Payments to Be Held in Trust..........49
<PAGE>vi
Section 1004 Statement by Officers as to Default........................50
Section 1005 Existence..................................................50
Section 1006 Maintenance of Properties..................................51
Section 1007 Payment of Taxes and Other Claims..........................51
Section 1008 Limitation Upon Disposition of Stock
or Assets of the Bank......................................51
Section 1009 Waiver of Certain Covenants................................52
ARTICLE ELEVEN
Redemption of Securities
Section 1101 Applicability of Article...................................53
Section 1102 Election to Redeem; Notice to Trustee......................53
Section 1103 Selection by Trustee of Securities to Be Redeemed..........53
Section 1104 Notice of Redemption.......................................54
Section 1105 Deposit of Redemption Price................................54
Section 1106 Securities Payable on Redemption Date......................55
Section 1107 Securities Redeemed in Part................................55
ARTICLE TWELVE
Sinking Funds
Section 1201 Applicability of Article...................................55
Section 1202 Satisfaction of Sinking Fund Payments with Securities......56
Section 1203 Redemption of Securities for Sinking Fund..................56
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301 Company's Option to Effect Defeasance or
Covenant Defeasance........................................56
Section 1302 Defeasance and Discharge...................................56
Section 1303 Covenant Defeasance........................................57
Section 1304 Conditions to Defeasance or Covenant Defeasance............57
Section 1305 Deposited Money, U.S. Government Obligations and
Foreign Government Obligations to Be Held in
Trust; Miscellaneous Provisions............................59
Section 1306 Reinstatement..............................................60
<PAGE>1
INDENTURE, dated as of _________, ____, between BOK Financial Corporation, a
corporation duly organized and existing under the laws of the State of Oklahoma
(herein called the "Company"), having its principal office at BOK Financial
Corporation, One Williams Center, Tulsa, Oklahoma 74172 and _______________, a
_____________ duly organized and existing under the laws of ________, as Trustee
(herein called the "Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, 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 term "generally accepted
accounting principles" 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) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
<PAGE>2
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, "
control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Bank" means (i) any institution which accepts deposits that the
depositor has a legal right to withdraw on demand and engages in the business of
making commercial loans and (ii) any trust company.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
<PAGE>3
"Corporate Trust Office" means the principal office of the Trustee in
__________________ at which at any particular time its corporate trust business
shall be administered.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Foreign GovernmentObligation" has the meaning specified in Section 1304.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
<PAGE>4
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section
1302; and
<PAGE>5
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as
of any date, (A) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (B) the principal amount
of a Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security
described in Clause (A) or (B) above, of the amount determined as provided in
such Clause), and (D) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Subsidiary Bank" means any Subsidiary which is a Bank and
has total assets equal to 30 percent or more of the consolidated assets of the
Company determined as of the date of the most recent audited financial
statements of such entities.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
<PAGE>6
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
<PAGE>7
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"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 stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such corporation (irrespective of
whether or not at the time stock of any other class or classes shall have
contingent voting rights).
"Wholly-Owned Subsidiary" means a corporation all of the outstanding
Voting Stock of which is owned directly by the Company.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
<PAGE>8
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 a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
<PAGE>9
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
<PAGE>10
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: _______________________,
or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. Notice to Holders; Waiver.
<PAGE>11
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
<PAGE>12
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
This Security is not a deposit and is not insured by the Federal
Deposit Insurance Corporation, the Bank Insurance Fund, the Savings Association
Insurance Fund or any other governmental agency.
BOK FINANCIAL CORPORATION
No. __________ $_____________
<PAGE>13
BOK Financial Corporation, a corporation duly organized and existing under
the laws of Oklahoma (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to
..............................................., or registered assigns, the
principal sum of ...................................... Dollars on
........................................................ [if the Security is to
bear interest prior to Maturity, insert -- , and to pay interest thereon from
............. or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ............ and
............ in each year, commencing ........., at the rate of ....% per annum,
until the principal hereof is paid or made available for payment [if applicable,
insert -- , provided that any principal and premium, and any such instalment of
interest, which is overdue shall bear interest at the rate of ...% per annum (to
the extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ....... or
....... (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture]. [If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal and any overdue
premium shall bear interest at the rate of ....% per annum (to the extent that
the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment. Interest on
any overdue principal or premium shall be payable on demand. [Any such interest
on overdue principal or premium which is not paid on demand shall bear interest
at the rate of ......% per annum (to the extent that the payment of such
interest on interest shall be legally enforceable), from the date of such demand
until the amount so demanded is paid or made available for payment. Interest on
any overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert - -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ............, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
<PAGE>14
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
BOK FINANCIAL CORPORATION
By _________________________________
Attest:
_______________________________
<PAGE>15
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ............... (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and ..................., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert -- , limited in aggregate principal amount to $...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after .........., 19..], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
- ----- ----- ---- -----
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
Redemption Price
For Redemption Redemption Price For
<PAGE>16
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ----- ---------------- -----------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company
may not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for the
redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
<PAGE>17
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each 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 Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
<PAGE>18
The Securities of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates 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 Officer
<PAGE>19
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. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the 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 the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4)the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of the Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which any Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
<PAGE>20
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(9) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(10) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(11) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or which shall
be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in
any such case, the manner in which such amount deemed to be the principal amount
shall be determined);
(12) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or
both such Sections and, if other than by a Board Resolution, the manner in which
any election by the Company to defease such Securities shall be evidenced;
(13) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 204 and any circumstances in addition
to or in lieu of those set forth in Clause (2) of the last paragraph of Section
305 in which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(14) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 502;
(15) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
<PAGE>21
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
<PAGE>22
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms have
been established in conformity with the provisions of this Indenture; and
(3) that such Securities, when 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 legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such 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.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
<PAGE>23
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. 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 and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series
at the office or agency of the Company in a Place of Payment for that 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 Securities
of the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
<PAGE>24
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (B) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (ii)
has ceased to be a clearing agency registered under the Exchange Act, (B) there
shall have occurred and be continuing an Event of Default with respect to such
Global Security or (C) there shall exist such circumstances, if any, in addition
to or in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued in
exchange for a Global Security or any portion thereof shall be registered in
such names as the Depositary for such Global Security shall direct.
<PAGE>25
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
<PAGE>26
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date 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 Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
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
given to each Holder of Securities of such series in the manner set forth in
Section 106, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
<PAGE>27
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a [360-day year of twelve 30-day months.]
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
<PAGE>28
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company, and the
Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose money in an
amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of
such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
<PAGE>29
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):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that 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) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Principal Subsidiary Bank
(including a default with respect to Securities of any series other than that
series) having an aggregate principal amount outstanding of in excess of $ , or
under any mortgage, indenture or instrument (including this ----------
Indenture) under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company or any Principal
Subsidiary Bank having an aggregate principal amount outstanding of in excess of
$ , whether such indebtedness now exists or shall hereafter be ----------
created, which default (A) shall constitute a failure to pay any portion of the
principal of such indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto or (B) shall have resulted in such
indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without, in the case of
<PAGE>30
Clause (A), such indebtedness having been discharged or without, in the case of
Clause (B), such indebtedness having been discharged or such acceleration having
been rescinded or annulled, in each such case within a period of 60 days after
there shall have 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 that series a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or cause such acceleration to be rescinded or annulled, as the
case may be, and stating that such notice is a "Notice of Default" hereunder,
unless in either case (A) or (B) such default is contested in good faith by
appropriate proceedings; provided, however, that, subject to the provisions of
Sections 601 and 602, the Trustee shall not be deemed to have knowledge of such
default unless either (A) a Responsible Officer of the Trustee shall have actual
knowledge of such default or (B) the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder of any such
indebtedness or from the trustee under any such mortgage, indenture or other
instrument; or
(6) 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 Principal Subsidiary
Bank 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 Principal Subsidiary Bank 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
Principal Subsidiary Bank under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Principal Subsidiary Bank or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company or any Principal Subsidiary Bank 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 it to
the entry of a decree or order for relief in respect of the Company or any
Principal Subsidiary Bank 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 it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Principal
Subsidiary Bank or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any Principal Subsidiary Bank in furtherance
of any such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
<PAGE>31
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(6)
or 501 (7) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that 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
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor 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
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
<PAGE>32
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, the Company will, upon demand of
the Trustee, pay to it, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for principal and any
premium and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If 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 by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
<PAGE>33
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607; and
Second: To the payment of the amounts then due and unpaid for principal
of and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series 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 that series;
(2) the Holders of not less than [25%] in principal amount of the
Outstanding Securities of that 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
<PAGE>34
(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 that 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 itself of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
<PAGE>35
Section 512. Control by Holders.
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, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, 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. Undertaking for Costs.
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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
Section 515. Waiver of Usury, Stay or Extension Laws.
<PAGE>36
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) 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. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(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, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
<PAGE>37
(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
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 this Indenture at the request or direction of
any of the Holders 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,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and 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. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
<PAGE>38
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series [or a trustee under -- list here any prior
indentures between the Company and the Trustee that have not been satisfied and
discharged and that may be excluded by the proviso to Section 310(b)(1) of the
Trust Indenture Act].
Section 609. Corporate Trustee Required; Eligibility.
<PAGE>39
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in the [Borough of Manhattan, The City of New York]. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the Securities of any
series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
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 in accordance with the
applicable requirements of Section 611.
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 611 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 the
Securities of such series.
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 to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject to Section
514, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
<PAGE>40
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 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 611. 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 611, 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 and accepted appointment in the manner required by Section 611, any
Holder 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.
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 to all Holders
of Securities of such series in the manner provided in Section 106. 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 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
<PAGE>41
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series 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, each 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 and 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 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 and each 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 any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all 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.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
<PAGE>42
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
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 shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent 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 the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, 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 to 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 to 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 give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
<PAGE>43
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 Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
........................................,
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (1)
semi-annually, not later than ............... and ................... in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of each series as of the preceding
.............. or .............., as the case may be, 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; excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
<PAGE>44
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than ............ in each calendar year,
commencing in ............
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
<PAGE>45
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust, shall be organized and
validly 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
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and any premium
and interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of 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;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would become
subject to a mortgage, pledge, lien, security interest or other encumbrance
which would not be permitted by this Indenture, the Company or such successor
Person, as the case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease 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 Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company 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 Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
<PAGE>46
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events of
Default are to be for the benefit of less than all series of Securities, stating
that such additional Events of Default are expressly being included solely for
the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (A) shall neither (i) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) 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 611;
or
<PAGE>47
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this Clause (9)
shall not adversely affect the interests of the Holders of Securities of any
series in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities 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 a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
(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
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, 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; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1009, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included 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.
<PAGE>48
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities 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.
<PAGE>49
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies 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 will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for 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 will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
<PAGE>50
The Company will 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 will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005. Existence.
<PAGE>51
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence and
that of each Principal Subsidiary and the rights (charter and statutory) and
franchises of the Company and each Principal Subsidiary; provided, however, that
the Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Principal
Subsidiaries and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1008. Limitation Upon Disposition of Stock or Assets of a Bank.
So long as any of the Securities shall be outstanding, but subject to
the provisions of Article Eight, the Company will not sell, assign, transfer,
grant a security interest in or otherwise dispose of any shares of, securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock (other than directors' qualifying shares) of any
Principal Subsidiary Bank, nor will it permit any Principal Subsidiary Bank to
issue (except to the Company) any shares of, securities convertible into, or
options, warrants or rights to subscribe for or purchase, shares of, Voting
Stock of any Principal Subsidiary Bank except for sales, assignments, transfers,
grants of security interests or other dispositions which: (i) are for fair
market value on the date thereof, as determined by the Board of Directors of the
Company (which determination shall be conclusive) and evidenced by a duly
adopted resolution thereof (provided, that if such consideration includes
securities of any Person, such Person would not be an Affiliate of the Company
<PAGE>52
immediately after the consummation of such transaction), and after giving effect
to such disposition and to any possible dilution (and assuming, for purposes of
this clause (i), that all such convertible securities have been fully converted
and all such options, warrants or rights have been fully exercised), the Company
will own at least 80% of the Voting Stock of such Principal Subsidiary Bank then
issued and outstanding free and clear of any security interest; (ii) are made in
compliance with an order of a court or regulatory authority of competent
jurisdiction, a condition imposed by any such court or authority permitting the
acquisition by the Company, directly or indirectly, of any other bank or entity
the activities of which are legally permissible for a bank holding company or a
subsidiary thereof to engage in, or an undertaking made to such authority in
connection with such an acquisition; (iii) are made where such Principal
Subsidiary Bank, having obtained any necessary regulatory approvals,
unconditionally guarantees payment when due of the principal of and interest on
the Securities; or (iv) are made to the Company or any Wholly-Owned Subsidiary
if such Wholly-Owned Subsidiary by supplemental indenture agrees to be bound by
this covenant as if it were the Company and the Company by supplemental
indenture agrees to maintain such Wholly-Owned Subsidiary as a Wholly-Owned
Subsidiary. Notwithstanding the foregoing, any Principal Subsidiary Bank may be
merged into or consolidated with another banking institution organized under the
laws of the United States, any State thereof or the District of Columbia, if
after giving effect to such merger or consolidation the Company or any
Wholly-Owned Subsidiary owns at least 80% of the Voting Stock of such other
banking institution then issued and outstanding free and clear of any security
interest and if, immediately after giving effect thereto and treating any such
resulting banking institution thereafter as such Principal Subsidiary Bank and
as a Subsidiary for purposes of this Indenture, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default with respect to Securities of any series, shall have happened and be
continuing.
Section 1009. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(18),
901(2) or 901(7) for the benefit of the Holders of such series or in Section
1008 if before the time for such compliance the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive 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.
<PAGE>53
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), 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, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), 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 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 a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), 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 and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
<PAGE>54
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and, if less than all the
Outstanding Securities of any series consisting of a single Security are to be
redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
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 and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
<PAGE>55
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) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
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 any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities 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 such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, 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 as
provided for by the terms of such Securities.
<PAGE>56
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than ........ days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, 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 Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than ......... days prior to 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
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302
or Section 1303 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant to
such Section 1302 or 1303, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
Section 1302. Defeasance and Discharge.
<PAGE>57
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1006 through 1009, inclusive, and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Sections 501(4)
(with respect to any of Section 801(3), Sections 1006 through 1009, inclusive,
and any such covenants provided pursuant to Section 301(18), 901(2) or 901(7)),
501(5) and 501(8) shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, 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 specified Section (to the extent so specified
in the case of Section 501(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
1302 or Section 1303 to any Securities or any series of Securities, as the case
may be:
<PAGE>58
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article 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 benefits of the Holders of such Securities, (A) in the case of
Securities denominated in a foreign currency, money in such foreign currency or
Foreign Government Obligations of the foreign government or governments issuing
such foreign currency 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, such foreign currency in
an amount, or (B) in the case of Securities denominated in U.S. dollars, U.S.
dollars or U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, U.S. dollars
in an amount, or (C) a combination of money and Foreign Government Obligations
or U.S. Government Obligations (as applicable), in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium and
interest on such Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i) a direct obligation
of the United States of America for the payment of which the full faith and
credit of the United States of America is pledged or (ii) an obligation of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in Clause (x) above and held by such
bank for the account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, 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 depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt. As used herein,
"Foreign Government Obligation" means any security denominated in a foreign
currency which is (i) a direct obligation of a foreign government or governments
for the payment of which the full faith and credit of such foreign government or
governments is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of such foreign
government or governments the payment of which is unconditionally guaranteed as
a full faith and credit obligation by such foreign government, which, in either
case (i) or (ii) is not callable or redeemable at the option of the issuer
thereof.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A)(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 instrument, there has been a
change in the applicable Federal income tax law, in either case (x) or (y) to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be effected
with respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur and (B) if Securities
of such series Securities are then listed on the New York Stock Exchange, to the
effect that the Securities of such series will not be delisted as a result of
such election.
<PAGE>59
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be effected
with respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other Securities
of the same series, if then listed on any securities exchange, will be delisted
as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit or,
with regard to any such event specified in Sections 501(6) and (7), at any time
on or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with. Section 1305. Deposited Money, U.S. Government Obligations and
Foreign Government Obligations to Be Held in Trust; Miscellaneous Provisions.
<PAGE>60
Subject to the provisions of the last paragraph of Section 1003, all
money, U.S. Government Obligations and Foreign Government Obligations (including
the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1306, the Trustee and any such
other trustee are referred to collectively as the "Trustee") pursuant to Section
1304 in respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations or
Foreign Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations or Foreign Government Obligations held by
it as provided in Section 1304 with respect to any Securities 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 the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
[SEAL] BOK FINANCIAL CORPORATION
<PAGE>61
By _________________________________________
Attest:
- ------------------------
62
Exhibit 5.0
Opinion of Frederic Dorwart, Lawyers
<PAGE>63
October 5, 1998
BOK Financial Corporation
One Williams Center
Tulsa, Oklahoma 74172
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933
(the "Act") of $250,000,000 aggregate amount of senior debt securities (the
"Senior Debt Securities") of BOK Financial Corporation, an Oklahoma corporation
(the "Company"), we, as your counsel, have examined such corporate records,
certificates and other documents, and such questions of law, as we have
considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our opinion
when the registration statement relating to the Securities (the "Registration
Statement") has become effective under the Act, the indenture relating to the
Senior Debt Securities (the "Indenture") has been duly executed and delivered,
the terms of the Senior 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 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, and the Senior Debt Securities have been duly executed and
authenticated in accordance with the Indenture and issued and sold as
contemplated in the Registration Statement, the Senior Debt Securities will
constitute valid and legally binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
The foregoing opinion is limited to the Federal laws of the United
States, and the laws of the State Oklahoma, and we are expressing no opinion as
to the effect of the laws of any other jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to be
responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity of
the Senior Debt Securities" in the Prospectus. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act.
Sincerely,
FD/vv /s/Frederic Dorwart
64
Exhibit 23.0
Consent of Ernst & Young LLP
<PAGE>65
The Board of Directors
BOK Financial Corporation:
We consent to the reference of our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related Prospectus of BOK Financial
Corporation for the registration of $250,000,000 of Senior Debt Securities and
to the incorporation by reference therein of our report dated January 27, 1998
with respect to the consolidated financial of BOK Financial Corporation included
in its Annual Report (Form 10-K) for the year ended December 31, 1997 filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Tulsa Oklahoma
October 9, 1998
