AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 1, 1997
REGISTRATION NO. 333-19861 AND 22-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BANK UNITED CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 6711 13-3528556
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
JONATHON K. HEFFRON, ESQ.
3200 SOUTHWEST FREEWAY EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
SUITE 1600 3200 SOUTHWEST FREEWAY, SUITE 1600
HOUSTON, TX 77027 HOUSTON, TX 77027
(713) 543-6500 (713) 543-6958
(ADDRESS, INCLUDING ZIP CODE, AND (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
TELEPHONE NUMBER, INCLUDING AREA NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CODE, OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
</TABLE>
------------------------
COPIES TO:
JOHN R. BRANTLEY, ESQ. PETER H. DARROW, ESQ.
BRACEWELL & PATTERSON, L.L.P. CLEARY, GOTTLIEB, STEEN & HAMILTON
2900 SOUTH TOWER PENNZOIL PLACE ONE LIBERTY PLAZA
HOUSTON, TEXAS 77002-2781 NEW YORK, NEW YORK 10006
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES 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, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ] __________________
If this Form is a post-effective amendment filed pursuant to Rule 462(e)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED OFFERING PRICE(1) FEE
- -------------------------------------------------------------------------------
% Subordinated Notes due 2004 $100,000,000 $30,304
- -------------------------------------------------------------------------------
% Subordinated Notes due 2007 $120,000,000 $36,364
- -------------------------------------------------------------------------------
Total $220,000,000 $66,668
================================================================================
(1) Estimated solely for the purpose of calculating the registration fee.
------------------------
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered hereby, other than
underwriting discounts and commissions. All amounts are estimated except the
Securities and Exchange Commission (the "Commission") registration fee and the
National Association of Securities Dealers, Inc. ("NASD") filing fee.
PAYABLE
BY THE
REGISTRANT
----------
SEC registration fee................. $ 66,668
NASD filing fee...................... 22,500
Blue Sky fees and expenses........... 10,000
Accounting fees and expenses......... 35,000
Legal fees and expenses.............. 130,000
Trustee's fees and expenses.......... 9,000
Printing and engraving expenses...... 175,000
Miscellaneous fees and expenses...... 20,000
----------
Total........................... $ 468,168
==========
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation, a "derivative action") if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with the defense or settlement of such actions, and the
statute requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may be
granted by a corporation's bylaws, disinterested director vote, stockholder
vote, agreement or otherwise.
The Restated Certificate of Incorporation of the Company (the
"Certificate") provides that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person, or a person of whom such person is the legal
representative, is or was a director or officer of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, will be indemnified and held harmless by
the Company to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), against all expense, liability and loss reasonably incurred or
suffered by such person in connection therewith. Such right to indemnification
includes the right to have the Company pay the expenses incurred in defending
any such proceeding in advance of its final disposition, subject to the
provisions of the DGCL. Such rights are not
II-1
<PAGE>
exclusive of any other right which any person may have or thereafter acquire
under any statute, provision of the Certificate, By-Laws, agreement, vote of
stockholders or disinterested directors or otherwise. No repeal or modification
of such provision will in any way diminish or adversely affect the rights of any
director, officer, employee or agent of the Company thereunder in respect of any
occurrence or matter arising prior to any such repeal or modification. The
Certificate also specifically authorizes the Company to maintain insurance and
to grant similar indemnification rights to employees or agents of the Company.
The DGCL permits a corporation to provide in its certificate of
incorporation that a director of the corporation shall not be personally liable
to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability for (i) any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) payments of unlawful dividends or unlawful stock
repurchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
The Certificate provides that a director of the Company will not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except, if required by the DGCL as
amended from time to time, for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the DGCL, which concerns unlawful payments of
dividends, stock purchases or redemptions, or (iv) for any transaction from
which the director derived an improper personal benefit. Neither the amendment
nor repeal of such provision will eliminate or reduce the effect of such
provision in respect of any matter occurring, or any cause of action, suit or
claim that, but for such provision, would accrue or arise prior to such
amendment or repeal.
The Underwriting Agreement provides for indemnification by the Underwriters
of the registrant, its Directors and officers, and by the registrant of the
Underwriters, for certain liabilities, including liabilities arising under the
Securities Act, and affords certain rights of contribution with respect thereto.
In addition, Lewis S. Ranieri, Salvatore A. Ranieri, and Scott A. Shay, who
are directors of the Company, may be entitled to indemnification from Hyperion
Partners L.P. and Hyperion Ventures L.P., the former upstream affiliates of the
Company. Such former upstream affiliates, at their sole discretion, may elect to
indemnify other persons who serve as directors or officers of the Company.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During June 1996, the following actions were taken in the order indicated:
(i) Hyperion Holdings exchanged shares of a newly created class of its
non-voting common stock for certain shares of its voting common stock held by
Hyperion Partners; (ii) Hyperion Partners then distributed the Hyperion Holdings
common stock to its limited and general partners in accordance with the limited
partnership agreement of Hyperion Partners (the "Distribution"); and (iii)
following the Distribution, Hyperion Holdings was merged with and into the
Company (the "Merger"), with the result that holders of Hyperion Holdings
voting and non-voting common stock received shares of Class A Common Stock and
Class B Common Stock and the holders of the Company's Class C common stock, par
value $0.01 per share ("Class C Common Stock") received shares of Class B
Common Stock as set forth under "Selling Stockholders". As part of the
Restructuring, the common stock of Hyperion Holdings and the Class C Common
Stock were converted 1,800 to one. Subsequent to the Restructuring, there were
no shares of Class C Common Stock outstanding. In addition, immediately prior to
the August Offering, the FDIC-FRF surrendered to the Bank a portion of the
Warrant to purchase 158,823 shares of Bank Common Stock for a cash payment of
$6.1 million and exercised the remainder of the Warrant. Immediately thereafter,
the FDIC-FRF exchanged the shares of Bank Common Stock for 1,503,560 shares of
Class B Common Stock, all of which are being sold in the August Offering. See
"Business -- The Assistance Agreement". In June 1996, the Company granted
318,342 shares of Class B Common Stock to certain executive officers of the
Company pursuant to the executive management compensation program. See
"Management -- Executive Management Compensation Program".
II-2
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits. The following exhibits are filed as part of this
Registration Statement. Except as otherwise indicated, each exhibit is
incorporated herein by reference to the exhibit of the same number in the
Registrant's Registration Statement on Form S-1 (Registration No. 333-06229).
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------------------ ------------------------------------------------------------------------------------------
<C> <S>
+1 -- Form of Underwriting Agreement by and among the Registrant and the Underwriters.
2.1 -- Form of Letter Agreement, by and among the general and limited partners of Hyperion
Partners, L.P., dated as of June 17, 1996, relating to certain transactions consumated
prior to the Offering.
2.2 -- Merger Agreement, dated as of June 17, 1996, by and between the Company and Hyperion
Holdings related to the Merger.
3.1 -- Form of Restated Certificate of Incorporation of the Registrant, as amended.
3.2 -- Form of By-Laws of the Registrant.
4.1 -- Indenture, dated as of May 15, 1993, between USAT Holdings Inc. and The Bank of New York,
as Trustee, relating to the Company's 8.05% Senior Notes due May 15, 1998.
*4.2 -- Indenture, dated as of , between the Registrant and The Bank of New York, as
Trustee, relating to the Registrant's % Subordinated Notes due , 2004 and %
Subordinated Notes due , 2007
4.3 -- Form of % Subordinated Note due , 2004 (included in the Indenture filed as
Exhibit 4.2 hereto).
4.4 -- Form of % Subordinated Notes due , 2007 (included in the Indenture filed as
Exhibit 4.2 hereto)
4.5 -- Form of 8.05% Senior Note due May 15, 1998 (included in Indenture filed as Exhibit 4.1
hereto).
4.6 -- Exchange and Registration Rights relating to Registrant's 8.05% Senior Notes due May 15,
1998. (Incorporated by reference to Exhibit 4.3 in the Registrant's Registration Statement
on Form S-1, Registration No. 333-06229.)
4.7 -- First Supplemental Indenture, dated as of January 23, 1995, between the Registrant and The
Bank of New York, as Trustee, relating to Registrant's 8.05% Senior Notes due May 15,
1998. (Incorporated by reference to Exhibit 4.4 in the Registrant's Registration Statement
on Form S-1, Registration No. 333-06229.)
*4.8 -- Second Supplemental Indenture, dated as of December 3, 1996 among Registrant, BNKU
Holdings, Inc. and The Bank of New York, as Trustee, relating to Registrant's 8.05% Senior
Notes due May 15, 1998.
*4.9 -- Third Supplemental Indenture, dated as of March 27, 1997 between the Registrant and The
Bank of New York, as Trustee, relating to the Registrant's 8.05% Senior Notes due May 15,
1998.
*5 -- Form of Opinion of Bracewell & Patterson, L.L.P. as to the validity of the securities
registered hereunder.
10.1 -- Assistance Agreement, dated December 30, 1988, among the Bank, the Registrant, Hyperion
Holdings, Hyperion Partners, and the FSLIC.
10.1a -- Settlement and Termination Agreement, dated as of December 23, 1993, among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners and the FDIC.
10.1b -- Tax Benefits Agreement, dated December 28, 1993, among the Bank, the Registrant, Hyperion
Holdings, Hyperion Partners and the FDIC.
10.2 -- Acquisition Agreement, dated December 30, 1988, between the Bank and the FSLIC.
10.3 -- Warrant Agreement, dated December 30, 1988, between the Bank and the FSLIC.
10.3a -- Amended and Restated Warrant Agreement dated December 28, 1993, between the Bank and the
FDIC.
10.4 -- Regulatory Capital Maintenance Agreement, dated December 30, 1988 among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners, and the FSLIC (terminated)
10.5 -- Federal Stock Charter of the Bank and First Amendment to charter approved on August 26,
1992.
10.6 -- Amended and Restated Federal Stock Charter of the Bank and Second Amendment approved on
October 30, 1992
</TABLE>
II-3
<PAGE>
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<C> <S>
10.6a -- Third Amendment to the Federal Stock Charter of the Bank approved on April 23, 1996
10.6b -- Amended and Restated Bylaws of the Bank
10.7 -- Specimen Preferred Stock, Series A, certificate, $25.00 per share stated value of the Bank
10.7a -- Certificate of Designation of Noncumulative Preferred Stock, Series A, of the Bank
10.7b -- Specimen Preferred Stock, Series B, certificate, $25.00 per share stated value, of the
Bank
10.7c -- Certificate of Designation of Noncumulative Preferred Stock, Series B, of the Bank
10.8 -- Data Processing Agreement, dated January 1, 1992, between the Bank and Systematics
Financial Services, Inc., and First Amendment (dated October 28, 1992) and Second
Amendment (dated September 1, 1992)
10.8a -- Third Amendment, dated December 17, 1993, to the Data Processing Agreement, dated January
1, 1992, between the Bank and Systematics Financial Services, Inc.
10.8b -- Fourth Amendment, dated March 28, 1994, to the Data Processing Agreement, dated January 1,
1992, between the Bank and Systematics Financial Services, Inc.
10.8c -- Fifth Amendment, dated April 1, 1994 to the Data Processing Agreement, dated January 1,
1992, between the Bank and Systematics Financial Services, Inc.
10.8d -- Sixth Amendment, dated February 26, 1996 to the Data Processing Agreement, dated January
1, 1992, between the Bank and Systematics Financial Services, Inc.
10.9 -- Management and Consulting Services Agreement, dated January 1, 1992, between the Bank and
Systematics Financial Services, Inc., and First Amendment (dated March 18, 1992) and
Second Amendment (dated September 1, 1992)
10.10 -- Lease Agreement, dated April 1, 1989, between the Bank and Homart Development Co. (Leased
premises at 3200 Southwest Freeway) and First Amendment thereto dated January 31, 1990
10.10a -- Second Amendment, dated November 14, 1994 to Lease Agreement dated April 1, 1989, between
the Bank and Homart Development Co. (assigned to HD Delaware Properties, Inc.)
10.10b -- Third Amendment, dated January 8, 1996 to Lease Agreement dated April 1, 1989 between the
Bank and Homart Development Co. (predecessor in interest of HMS Office, L.P.)
10.11 -- Lease Agreement, dated November 20, 1990, between the Bank and Greenway Plaza, LTD.
(Leased premises at 3800 Buffalo Speedway)
10.12 -- Employment Agreement, dated March 18, 1991, between the Bank and Barry C. Burkholder
10.12a -- Amendment, dated April 10, 1996, to the Employment Agreement between the Bank and Barry C.
Burkholder
10.13 -- Letter Agreement Related to Employment, dated April 4, 1990, between the Bank and Anthony
J. Nocella
10.14 -- Letter Agreement Related to Employment, dated June 18, 1990 between the Bank and George R.
Bender
10.15 -- Letter Agreement Related to Employment, dated April 6, 1990, between the Bank and Jonathon
K. Heffron
10.16 -- Letter Agreement Related to Employment, dated May 10, 1991, between the Bank and Leslie H.
Green
10.17 -- Management Incentive Plan, dated April 20, 1992
10.18 -- Letter Agreement, dated January 5, 1990, between Hyperion Partners and certain
shareholders of the Registrant with respect to the provision of managerial assistance to
the Registrant
10.22 -- Supplemental Executive Savings Plan of the Bank
10.23 -- Directors Supplemental Savings Plan of the Bank
10.24 -- Warrant Purchase and Exchange Agreement, dated July 23, 1996, by and among the Company,
the Bank and the Federal Deposit Insurance Corporation
10.25 -- Tax Sharing Agreement dated as of May 1, 1996, by and between the Company and the Bank.
10.26 -- Form of The Company's 1996 Stock Incentive Plan
</TABLE>
II-4
<PAGE>
<TABLE>
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10.27 -- Form of The Company's Director Stock Plan
10.28 -- Employment Agreement, dated August 1, 1996, between the Company and Barry C. Burkholder
10.29 -- Employment Agreement, dated August 1, 1996, between the Company and Anthony J. Nocella
10.30 -- Employment Agreement, dated August 1, 1996, between the Company and Jonathon K. Heffron
10.31 -- Employment Agreement, dated August 1, 1996, between the Company and Ronald D. Coben
10.32 -- Form of Nontransferable Stock Agreement
10.33 -- Form of Stock Option Agreement
10.34 -- Consulting Agreement
10.35 -- Recovery Agreement
10.36 -- Stock Purchase Agreement, dated January 15, 1993, between Hyperion Partners and Hyperion
Holdings
*12 -- Statement of Computation of Ratios of Earnings to Fixed Charges.
21 -- Subsidiaries of the Registrant
*23.1 -- Consent of Deloitte & Touche, LLP, independent auditors
*23.2 -- Consent of Bracewell & Patterson, L.L.P. (included in Exhibit 5)
+24 -- Powers of Attorney
*25 -- Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939
</TABLE>
- ------------
+ Previously filed.
* Filed herewith.
(b) Financial Statement Schedules.
Schedules to the Consolidated Financial Statements are not required under
the related instructions or are inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
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 Securities 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 whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF HOUSTON, STATE OF TEXAS,
ON THE 1ST DAY OF APRIL, 1997.
BANK UNITED CORP.
By:/s/ BARRY C. BURKHOLDER
Barry C. Burkholder
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE DATES INDICATED BELOW.
SIGNATURES TITLE DATE
- --------------------------------- ------------------------ ---------------
(1) Principal Executive Officer:
/s/ BARRY C. BURKHOLDER President and April 1, 1997
BARRY C. BURKHOLDER Chief Executive Officer
(2) Principal Financial and
Accounting Officer:
/s/ ANTHONY J. NOCELLA Chief Financial Officer April 1, 1997
ANTHONY J. NOCELLA
(3) Directors:
* Director April 1, 1997
LEWIS S. RANIERI
* Director April 1, 1997
SCOTT A. SHAY
Director April 1, 1997
BARRY C. BURKHOLDER
* Director April 1, 1997
LAWRENCE CHIMERINE, PH.D.
* Director April 1, 1997
DAVID M. GOLUSH
* Director April 1, 1997
PAUL M. HORVITZ, PH.D.
II-6
<PAGE>
SIGNATURES TITLE DATE
- --------------------------------- ------------------------ ---------------
* Director April 1, 1997
ALAN E. MASTER
Director April 1, 1997
ANTHONY J. NOCELLA
* Director April 1, 1997
SALVATORE A. RANIERI
* Director April 1, 1997
PATRICIA A. SLOAN
* Director April 1, 1997
KENDRICK R. WILSON III
* Director April 1, 1997
MICHAEL S. STEVENS
*By: /s/ JONATHON K. HEFFRON
JONATHON K. HEFFRON
ATTORNEY-IN-FACT
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------------------ ------------------------------------------------------------------------------------------
<C> <S>
+1 -- Form of Underwriting Agreement by and among the Registrant and the Underwriters.
2.1 -- Form of Letter Agreement, by and among the general and limited partners of Hyperion
Partners, L.P., dated as of June 17, 1996, relating to certain transactions consumated
prior to the Offering.
2.2 -- Merger Agreement, dated as of June 17, 1996, by and between the Company and Hyperion
Holdings related to the Merger.
3.1 -- Form of Restated Certificate of Incorporation of the Registrant, as amended.
3.2 -- Form of By-Laws of the Registrant.
4.1 -- Indenture, dated as of May 15, 1993, between USAT Holdings Inc. and The Bank of New York,
as Trustee, relating to the Company's 8.05% Senior Notes due May 15, 1998.
*4.2 -- Indenture, dated as of , between the Registrant and The Bank of New York, as
Trustee, relating to the Registrant's % Subordinated Notes due , 2004 and %
Subordinated Notes due , 2007
4.3 -- Form of % Subordinated Note due , 2004 (included in the Indenture filed as
Exhibit 4.2 hereto).
4.4 -- Form of % Subordinated Notes due , 2007 (included in the Indenture filed as
Exhibit 4.2 hereto)
4.5 -- Form of 8.05% Senior Note due May 15, 1998 (included in Indenture filed as Exhibit 4.1
hereto).
4.6 -- Exchange and Registration Rights relating to Registrant's 8.05% Senior Notes due May 15,
1998. (Incorporated by reference to Exhibit 4.3 in the Registrant's Registration Statement
on Form S-1, Registration No. 333-06229.)
4.7 -- First Supplemental Indenture, dated as of January 23, 1995, between the Registrant and The
Bank of New York, as Trustee, relating to Registrant's 8.05% Senior Notes due May 15,
1998. (Incorporated by reference to Exhibit 4.4 in the Registrant's Registration Statement
on Form S-1, Registration No. 333-06229.)
*4.8 -- Second Supplemental Indenture, dated as of December 3, 1996 among Registrant, BNKU
Holdings, Inc. and The Bank of New York, as Trustee, relating to Registrant's 8.05% Senior
Notes due May 15, 1998.
*4.9 -- Third Supplemental Indenture dated as of March 27, 1997 between the Registrant and The
Bank of New York, as Trustee, relating to the Registrant's 8.05% Senior Notes due May 15,
1998.
*5 -- Form of Opinion of Bracewell & Patterson, L.L.P. as to the validity of the securities
registered hereunder.
10.1 -- Assistance Agreement, dated December 30, 1988, among the Bank, the Registrant, Hyperion
Holdings, Hyperion Partners, and the FSLIC.
10.1a -- Settlement and Termination Agreement, dated as of December 23, 1993, among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners and the FDIC.
10.1b -- Tax Benefits Agreement, dated December 28, 1993, among the Bank, the Registrant, Hyperion
Holdings, Hyperion Partners and the FDIC.
10.2 -- Acquisition Agreement, dated December 30, 1988, between the Bank and the FSLIC.
10.3 -- Warrant Agreement, dated December 30, 1988, between the Bank and the FSLIC.
10.3a -- Amended and Restated Warrant Agreement dated December 28, 1993, between the Bank and the
FDIC.
10.4 -- Regulatory Capital Maintenance Agreement, dated December 30, 1988 among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners, and the FSLIC (terminated)
10.5 -- Federal Stock Charter of the Bank and First Amendment to charter approved on August 26,
1992.
10.6 -- Amended and Restated Federal Stock Charter of the Bank and Second Amendment approved on
October 30, 1992
10.6a -- Third Amendment to the Federal Stock Charter of the Bank approved on April 23, 1996
10.6b -- Amended and Restated Bylaws of the Bank
10.7 -- Specimen Preferred Stock, Series A, certificate, $25.00 per share stated value of the Bank
10.7a -- Certificate of Designation of Noncumulative Preferred Stock, Series A, of the Bank
10.7b -- Specimen Preferred Stock, Series B, certificate, $25.00 per share stated value, of the
Bank
10.7c -- Certificate of Designation of Noncumulative Preferred Stock, Series B, of the Bank
10.8 -- Data Processing Agreement, dated January 1, 1992, between the Bank and Systematics
Financial Services, Inc., and First Amendment (dated October 28, 1992) and Second
Amendment (dated September 1, 1992)
10.8a -- Third Amendment, dated December 17, 1993, to the Data Processing Agreement, dated January
1, 1992, between the Bank and Systematics Financial Services, Inc.
10.8b -- Fourth Amendment, dated March 28, 1994, to the Data Processing Agreement, dated January 1,
1992, between the Bank and Systematics Financial Services, Inc.
<PAGE>
<C> <S>
10.8c -- Fifth Amendment, dated April 1, 1994 to the Data Processing Agreement, dated January 1,
1992, between the Bank and Systematics Financial Services, Inc.
10.8d -- Sixth Amendment, dated February 26, 1996 to the Data Processing Agreement, dated January
1, 1992, between the Bank and Systematics Financial Services, Inc.
10.9 -- Management and Consulting Services Agreement, dated January 1, 1992, between the Bank and
Systematics Financial Services, Inc., and First Amendment (dated March 18, 1992) and
Second Amendment (dated September 1, 1992)
10.10 -- Lease Agreement, dated April 1, 1989, between the Bank and Homart Development Co. (Leased
premises at 3200 Southwest Freeway) and First Amendment thereto dated January 31, 1990
10.10a -- Second Amendment, dated November 14, 1994 to Lease Agreement dated April 1, 1989, between
the Bank and Homart Development Co. (assigned to HD Delaware Properties, Inc.)
10.10b -- Third Amendment, dated January 8, 1996 to Lease Agreement dated April 1, 1989 between the
Bank and Homart Development Co. (predecessor in interest of HMS Office, L.P.)
10.11 -- Lease Agreement, dated November 20, 1990, between the Bank and Greenway Plaza, LTD.
(Leased premises at 3800 Buffalo Speedway)
10.12 -- Employment Agreement, dated March 18, 1991, between the Bank and Barry C. Burkholder
10.12a -- Amendment, dated April 10, 1996, to the Employment Agreement between the Bank and Barry C.
Burkholder
10.13 -- Letter Agreement Related to Employment, dated April 4, 1990, between the Bank and Anthony
J. Nocella
10.14 -- Letter Agreement Related to Employment, dated June 18, 1990 between the Bank and George R.
Bender
10.15 -- Letter Agreement Related to Employment, dated April 6, 1990, between the Bank and Jonathon
K. Heffron
10.16 -- Letter Agreement Related to Employment, dated May 10, 1991, between the Bank and Leslie H.
Green
10.17 -- Management Incentive Plan, dated April 20, 1992
10.18 -- Letter Agreement, dated January 5, 1990, between Hyperion Partners and certain
shareholders of the Registrant with respect to the provision of managerial assistance to
the Registrant
10.22 -- Supplemental Executive Savings Plan of the Bank
10.23 -- Directors Supplemental Savings Plan of the Bank
10.24 -- Warrant Purchase and Exchange Agreement, dated July 23, 1996, by and among the Company,
the Bank and the Federal Deposit Insurance Corporation
10.25 -- Tax Sharing Agreement dated as of May 1, 1996, by and between the Company and the Bank.
10.26 -- Form of The Company's 1996 Stock Incentive Plan
10.27 -- Form of The Company's Director Stock Plan
10.28 -- Employment Agreement, dated August 1, 1996, between the Company and Barry C. Burkholder
10.29 -- Employment Agreement, dated August 1, 1996, between the Company and Anthony J. Nocella
10.30 -- Employment Agreement, dated August 1, 1996, between the Company and Jonathon K. Heffron
10.31 -- Employment Agreement, dated August 1, 1996, between the Company and Ronald D. Coben
10.32 -- Form of Nontransferable Stock Agreement
10.33 -- Form of Stock Option Agreement
10.34 -- Consulting Agreement
10.35 -- Recovery Agreement
10.36 -- Stock Purchase Agreement, dated January 15, 1993, between Hyperion Partners and Hyperion
Holdings
*12 -- Statement of Computation of Ratios of Earnings to Fixed Charges.
21 -- Subsidiaries of the Registrant
*23.1 -- Consent of Deloitte & Touche, LLP, independent auditors
*23.2 -- Consent of Bracewell & Patterson, L.L.P. (included in Exhibit 5)
+24 -- Powers of Attorney
*25 -- Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939
</TABLE>
- ------------
+ Previously filed.
* Filed herewith.
EXHIBIT 4.2
BANK UNITED CORP.
TO
THE BANK OF NEW YORK,
Trustee
------------------------
INDENTURE
Dated as of April __, 1997
------------------------
<PAGE>
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
----------- -----------------
ss. 310(a)(1) .......................................... 609
(a)(2) .......................................... 609
(a)(3) ........................................... Not Applicable
(a)(4) ........................................... Not Applicable
(a)(5) ........................................... 609
(b) .............................................. 608, 610
ss. 311(a) ............................................. 613
(b) .............................................. 613
(c) .............................................. Not Applicable
ss. 312(a) ............................................. 701, 702(a)
(b) .............................................. 702(b)
(c) .............................................. 702(c)
ss. 313(a) ............................................. 703(a)
(b) .............................................. 703(a)
(c) .............................................. 703(a)
(d) .............................................. 703(b)
ss. 314(a)(1) .......................................... 704
(a)(2) ........................................... 704
(a)(3) ........................................... 704
(a)(4) ........................................... 101, 1004
(b) .............................................. Not Applicable
(c)(1) ........................................... 102
(c)(2) ........................................... 102
(c)(3) ........................................... Not Applicable
(d) .............................................. Not Applicable
(e) .............................................. 102
ss. 315(a) ............................................. 601
(b) .............................................. 602
(c) .............................................. 601
(d) .............................................. 514
(e) .............................................. 514
ss. 316(a) ............................................. 101
(a)(1)(A) ........................................ 502, 512
(a)(1)(B) ........................................ 513
(a)(2) ........................................... Not Applicable
(b) .............................................. 508
i
<PAGE>
(c) .............................................. 104(c)
ss. 317(a)(1) .......................................... 503
(a)(2) ........................................... 504
(b) .............................................. 1003
ss. 318(a) ............................................. 107
..............................................................................
NOTE:This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
Page
----
PARTIES......................................................................1
RECITALS OF THE COMPANY......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.....................................................1
Act............................................................2
Affiliate......................................................2
Authenticating Agent...........................................2
Bank...........................................................2
Board of Directors.............................................2
Board Resolution...............................................2
Book-Entry Note................................................2
Business Day...................................................2
Certificated Notes.............................................2
Commission.....................................................2
Company........................................................3
Company Request or Company Order...............................3
Corporate Trust Office.........................................3
Corporation....................................................3
default........................................................3
Defaulted Interest.............................................3
Depositary.....................................................3
Entitled Persons...............................................3
Event of Default...............................................3
Excess Proceeds................................................3
FDIC...........................................................3
Global Notes...................................................4
Holder.........................................................4
indebtedness for money borrowed................................4
Indenture......................................................4
Interest Payment Date..........................................4
Issue Date.....................................................4
Maturity.......................................................4
Notes..........................................................4
Officers' Certificate..........................................4
Opinion of Counsel.............................................4
Other Financial Obligations....................................4
OTS............................................................5
Outstanding....................................................5
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
iii
<PAGE>
Paying Agent...................................................5
Person.........................................................6
Place of Payment...............................................6
Predecessor Security...........................................6
Registered Note................................................6
Regular Record Date............................................6
Note Register and Security Registrar...........................4
Senior Indebtedness............................................6
Special Record Date............................................6
Stated Maturity................................................6
Trust Indenture Act............................................6
Trustee........................................................7
Vice President.................................................7
2004 Global Note...............................................7
2007 Global Note...............................................7
2004 Note......................................................7
2007 Note......................................................7
2004 Certificated Note.........................................7
2007 Certificated Note.........................................7
Section 102. Compliance Certificates and Opinions............................7
Section 103. Form of Documents Delivered to Trustee..........................8
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. Severability Clause............................................11
Section 111. Benefits of Indenture..........................................11
Section 112. Governing Law..................................................11
Section 113. Legal Holidays.................................................12
ARTICLE TWO
FORM OF NOTES
Section 201. Form and Dating................................................12
ARTICLE THREE
THE NOTES
Section 301. Title and Terms................................................14
Section 302. Authorized Denominations.......................................14
Section 303. Execution, Authentication, Delivery and Dating.................14
Section 304. Temporary Notes................................................16
Section 305. Registrar and Paying Agent.....................................16
Section 306. Paying Agent to Hold Money in Trust............................17
Section 307. Global Notes...................................................17
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
iv
<PAGE>
Section 308. Transfer and Exchange..........................................18
Section 309. Mutilated, Destroyed, Lost and Stolen Notes....................18
Section 310. Payment of Interest; Interest Rights Preserved.................19
Section 311. Persons Deemed Owners..........................................20
Section 312. Cancellation...................................................21
Section 313. Computation of Interest........................................21
Section 314. CUSIP Number...................................................21
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture........................21
Section 402. Application of Trust Money.....................................22
ARTICLE FIVE
REMEDIES
Section 501. Events of Default..............................................22
Section 502. Acceleration of Maturity; Rescission and Annulment.............24
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee........................................24
Section 504. Trustee May File Proofs of Claim...............................25
Section 505. Trustee May Enforce Claims Without Possession of Notes.........26
Section 506. Application of Money Collected.................................26
Section 507. Limitation on Suits............................................26
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest......................................................27
Section 509. Restoration of Rights and Remedies.............................27
Section 510. Rights and Remedies Cumulative.................................27
Section 511. Delay or Omission Not Waiver...................................28
Section 512. Control by Holders.............................................28
Section 513. Waiver of Past Defaults........................................28
Section 514. Undertaking for Costs..........................................28
Section 515. Waiver of Stay or Extension Laws...............................29
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities............................29
Section 602. Notice of Defaults.............................................29
Section 603. Certain Rights of Trustee......................................29
Section 604. Not Responsible for Recitals or Issuance of Notes..............31
Section 605. May Hold Notes.................................................31
Section 606. Money Held in Trust............................................31
Section 607. Compensation and Reimbursement.................................31
Section 608. Disqualification; Conflicting Interests........................32
Section 609. Corporate Trustee Required; Eligibility........................32
Section 610. Resignation and Removal; Appointment of Successor..............32
Section 611. Acceptance of Appointment by Successor.........................33
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
v
<PAGE>
Section 612. Merger, Conversion, Consolidation or Succession to Business....34
Section 613. Preferential Collection of Claims Against Company..............35
Section 614. Appointment of Authenticating Agent............................35
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders......36
Section 702. Preservation of Information; Communications to Holders.........36
Section 703. Reports by Trustee.............................................37
Section 704. Reports by Company.............................................37
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms...........37
Section 802. Successor Substituted..........................................37
Section 803. Opinion of Counsel to Trustee..................................38
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.............38
Section 902. Supplemental Indentures with Consent of Holders................39
Section 903. Execution of Supplemental Indentures...........................40
Section 904. Effect of Supplemental Indentures..............................40
Section 905. Conformity with Trust Indenture Act............................40
Section 906. Reference in Notes to Supplemental Indentures..................40
Section 907. Subordination Unimpaired.......................................40
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest....................41
Section 1002. Maintenance of Office or Agency...............................41
Section 1003. Money for Notes Payments to be Held in Trust..................41
Section 1004. Statement by Officers as to Default...........................42
Section 1005. Corporate Existence...........................................42
Section 1006. Waiver of Certain Covenants...................................43
Section 1007. Maintenance of Status of Subsidiaries as Insured Depository
Institution..................................................43
Section 1008. Capital and Dividends.........................................43
ARTICLE ELEVEN
SUBORDINATION OF NOTES
Section 1101. Notes Subordinated to Extent Provided.........................44
Section 1102. Payment Over of Proceeds Upon Dissolution, Etc................44
Section 1103. Prior Payment to Senior Indebtedness Upon Acceleration
of Notes.....................................................45
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
vi
<PAGE>
Section 1104. No Payment When Senior Indebtedness in Default................45
Section 1105. Payment Permitted If No Default...............................46
Section 1106. Subrogation to Rights of Holders of Senior Indebtedness.......46
Section 1107. Obligations of Company Unconditional; Provisions Solely to
Define Relative Rights.......................................47
Section 1108. Authorization of Trustee to Effectuate Subordination
of Notes.....................................................47
Section 1109. No Waiver of Subordination Provisions.........................47
Section 1110. Notice to Trustee; Trustee Not Charged with Knowledge of
Prohibition..................................................48
Section 1111. Reliance on Judicial Order or Certificate of
Liquidating Agent............................................48
Section 1112. No Fiduciary Duty to Holders of Senior Indebtedness or Other
Financial Obligations........................................49
Section 1113. Right of Trustee to Hold Senior Indebtedness of Company.......49
Section 1114. Article Applicable to Paying Agents...........................49
Section 1115. 2004 Notes and 2007 Notes to Rank Pari Passu with Each Other;
Payment of Proceeds in Certain Cases.........................49
ARTICLE TWELVE
MISCELLANEOUS
Section 1201. Rules by Trustee, Paying Agent and Registrar.................51
Section 1203. No Recourse Against Others...................................51
Section 1203. Counterparts.................................................51
Section 1204. Further Instruments and Acts.................................51
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
vii
<PAGE>
INDENTURE, dated as of April __, 1997, between Bank United Corp., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 3200 Southwest
Freeway, Suite 600, Houston, Texas 77027, and The Bank of New York, a New York
banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of its __% Subordinated
Notes due 2004 (the "2004 Notes") and its __% Subordinated Notes due 2007 (the
"2007 Notes", and together with the 2004 Notes, the "Notes") of substantially
the tenor and amount hereinafter set forth, and to provide therefor, the Company
has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee hereunder and duly issued by the
Company, the valid obligations of the Company and 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
Notes by the Holders (as hereinafter defined) thereof, it is mutually agreed,
for the equal and proportionate benefit of all Holders of the Notes, 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
<PAGE>
(4) 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 any of
the 2004 Notes or the 2007 Notes. Each reference herein to authentication by the
Trustee includes authentication by an Authenticating Agent.
"Bank" means Bank United, a federally chartered savings bank that is
an indirect wholly-owned subsidiary of the Company.
"Board of Directors" means the board of directors of the Company or
the Executive Committee or any other committee of the Board of Directors duly
authorized to act on behalf of such 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.
"Book-Entry Note" means a Registered Note bearing the legend
specified in Section 201, and registered in the name of a Depositary or its
nominee.
"Business Day", when used with respect to any Place of Payment,
unless otherwise specified in a Board Resolution and in an Officers'
Certificate, or in a supplemental indenture hereto, means each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions
in an applicable Place of Payment or the city in which the Trustee's Corporate
Trust Office is located or in the Borough of Manhattan in the City and State of
New York are authorized or obligated by law, executive order or regulation to
remain closed.
"Certificated Notes" has the meaning set forth in Section 201(c)
hereof.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the
2
<PAGE>
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.
"Corporate Trust Office" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
principally administered, which office is, at the date of execution of this
instrument, located at 101 Barclay Street, Floor 21 West, New York, New York
10286, Attention: Corporate Trust Administration.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"default" for purposes of Sections and Section 310(b) and 315 of the
Trust Indenture Act is defined to mean an "Event of Default" as specified in
Section 501 hereof.
"Defaulted Interest" has the meaning specified in Section 310.
"Depositary" means, with respect to the Notes issuable or issued in
the form of a Global Security, the Person designated as a Depositary by the
Company pursuant to Section 301 until a successor Depositary shall have become
such pursuant to the applicable provision of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and, if at any time there is more than one such person acting
separately in respect of the 2004 Notes and the 2007 Notes, "Depositary" as used
with respect to the Notes shall mean each such Depositary.
"Entitled Persons" means any person entitled to payment pursuant to
the terms of Other Financial Obligations.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning specified in Section 1115(c).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"FDIC" means the Federal Deposit Insurance Corporation, as from time
to time constituted, created under the Federal Deposit Insurance Improvement Act
of 1991, or if at any time after the execution of this instrument, such
corporation is not existing and performing the duties now assigned to it, then
the body performing such duties on such date, or any other successor to the
FDIC.
3
<PAGE>
"Global Notes" means the 2004 Global Note and the 2007 Global Notes
collectively.
"Holder" means (i) in the case of any Certificated Note, the person
in whose name such Certificated Note is registered on the Note Registry, and
(ii) in the case of any Global Note, the Depositary.
"indebtedness for money borrowed" as used in the definitions of
"Senior Indebtedness" and "Other Financial Obligations" means any obligation of,
or any obligation guaranteed by, the Company for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Indenture" means this instrument as originally executed or 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.
"Interest Payment Date" means, when used with respect to any of the
2004 Notes or the 2007 Notes, the Stated Maturity of an installment of interest
on such Note.
"Issue Date" means with respect to the 2004 Notes or the 2007 Notes,
the date of initial issuance of such Notes.
"Maturity" means, when used with respect to any of the 2004 Notes or
the 2007 Notes, the date on which the principal of such Note or an installment
of principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration or otherwise.
"Note Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means the 2004 Notes or the 2007 Notes
authenticated and delivered under this Indenture.
"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.
"Opinion of Counsel" means a written opinion of legal counsel, who
may be either counsel to the Company or an employee of the Company, which
Opinion shall be reasonably satisfactory to the Trustee and which is delivered
to the Trustee.
"Other Financial Obligations" means all obligations of the Company
to make payment pursuant to the terms of financial instruments, such as (i)
securities contracts and foreign currency exchange contracts, (ii) derivative
instruments, such as swap agreements
4
<PAGE>
(including interest rate and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange rate agreements, options, commodity futures contracts,
commodity options contracts, and (iii) in the case of both (i) and (ii) above,
similar financial instruments, other than (A) obligations on account of Senior
Indebtedness and (B) obligations on account of indebtedness for money borrowed
ranking PARI PASSU with or subordinate to the Notes.
"OTS" means the Office of Thrift Supervision, as from time to time
constituted, created under the Home Owners' Loan Act, or if at any time after
the execution of instrument such office is not existing and performing the
duties now assigned to it, then the body performing such duties on such date or
any other successor to the OTS.
"Outstanding", when used with respect to the 2004 Notes or the 2007
Notes, means, as of the date of determination, all such Notes theretofore
authenticated and delivered under this Indenture, EXCEPT:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes or portions thereof for whose payment money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or an Affiliate of 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 Notes; and
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes 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 or
waiver, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes 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 Notes and that the
pledgee is not the Company or any other obligor upon the Notes 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 premium, if any, or interest on any of the 2004 Notes or the
2007 Notes on behalf of the Company.
5
<PAGE>
"Person" means any individual, corporation, partnership,
association, joint venture, joint stock company, Depositary institution, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Notes, unless
otherwise specified in a Board Resolution and in an Officers' Certificate or in
a supplemental indenture hereto, means the office or agency of the Company in
the Borough of Manhattan, in the City of New York and State of New York, and
such other place or places, if any, where the principal of and premium, if any,
and interest on the Notes are payable, as contemplated by Section 301.
"Predecessor Security" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 309 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Registered Note" means any Note that is registered as to principal
and interest, if any.
"Regular Record Date" for the interest payable on any Interest
Payment Date on any of the 2004 Notes or on the 2007 Notes means the date
specified in Section 310.
"Senior Indebtedness" of the Company means the principal of,
premium, if any, and interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Company under applicable bankruptcy, insolvency or similar law now or hereafter
in effect) on (a) all indebtedness of the Company for money borrowed, whether
outstanding on the date of execution of this Indenture or thereafter created,
assumed or incurred, except such indebtedness as is by its terms expressly
stated to be not superior in right of payment to the Notes or to rank PARI PASSU
with or subordinate to the Notes, and (b) any deferrals, renewals or extensions
of any such indebtedness for money borrowed.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 310.
"Stated Maturity" means, when used with respect to any of the 2004
Notes or the 2007 Notes or any installment of principal thereof or interest
thereon, the date specified in such Note as the fixed date on which the
principal of such Note or such installment of principal or interest is due and
payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990 as in force at the date as of
which this instrument was executed; PROVIDED, HOWEVER, that in the event the
Trust Indenture Act is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture Act as so
amended.
6
<PAGE>
"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 either the 2004 Notes or the 2007 Notes shall mean the Trustee with
respect to such Notes.
"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".
"2004 Global Note" has the meaning set forth in Section 201(c)(i)
hereof.
"2007 Global Note" has the meaning set forth in Section 201(c)(ii)
hereof.
"2004 Note" has the meaning set forth in the first recital hereof.
"2007 Note" has the meaning set forth in the first recital hereof.
"2004 Certificated Note" has the meaning set forth in Section
201(c)(i) hereof.
"2007 Certificated Note" has the meaning set forth in Section
201(c)(ii) hereof.
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture 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 or
she has made such examination or investigation as is necessary to enable
him or her to express an
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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.
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 or her 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.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by 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.
(b) 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
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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 or her individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his or her 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.
(c) The Company may set any day as the record date for the purpose
of determining, as applicable, the Holders of Outstanding 2004 Notes or 2007
Notes entitled to make any request or demand, or give any authorization,
direction, notice, consent or waiver, or take other action, provided or
permitted by this Indenture to be made, given or taken by Holders of such Notes.
With regard to any record date set pursuant to this paragraph, the
Holders of Outstanding Notes on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to take relevant action,
whether or not such Holders remain Holders after such record date. With regard
to any action that may be taken hereunder only by Holders of a requisite
principal amount of Outstanding Notes (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the Company may, at its
option, set an expiration date after which no such action purported to be taken
by any Holder shall be effective hereunder unless taken on or prior to such
expiration date by Holders of the requisite principal amount of Outstanding
Notes on such record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may, on one or more
occasions at its option, extend such expiration date to any later date. Nothing
in this paragraph shall prevent any Holder (or any duly appointed agent thereof)
from taking at any time any action contrary to or different from any action
previously taken or purported to have been taken hereunder by such Holder, in
which event the Company may set a record date in respect thereof pursuant to
this paragraph. Notwithstanding the foregoing or the Trust Indenture Act, the
Company shall not set a record date for, and the provisions of this paragraph
shall not apply with respect to, any action to be taken by Holders pursuant to
Section 501, 502 or 512.
Upon receipt by the Trustee of notice of any default described in
Section 501, any declaration of acceleration, or any rescission and annulment of
any such declaration, pursuant to Section 502 or of any direction in accordance
with Section 512, a record date shall automatically and without any other action
by any Person be set for the purpose of determining the Holders of Outstanding
2004 Notes or 2007 Notes entitled to join in such notice, declaration, or
rescission and annulment, or direction, as the case may be, which record date
shall be the close of business on the day the Trustee receives such notice,
declaration, rescission and annulment or direction, as the case may be. The
Holders of Outstanding Notes on such record date (or their duly appointed
agent), and only such Persons, shall be entitled to join in such notice,
declaration, rescission and annulment, or direction, as the case may be, whether
or not such Holders remain Holders after such record date; PROVIDED THAT, unless
such notice, declaration, rescission and annulment, or direction, as the case
may be, shall have become effective by virtue of Holders of the requisite
principal amount of Outstanding Notes on such record date (or their duly
appointed agents)
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having joined therein on or prior to the 90th day after such record date, such
notice of default, declaration, or rescission and annulment or direction given
or made by the Holders, as the case may be, shall automatically and without any
action by any Person be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a notice of
default, a declaration of acceleration, a rescission and annulment of a
declaration of acceleration or a direction in accordance with Section 512,
contrary to or different from, or, after the expiration of such period,
identical to, a previously given notice, declaration, rescission and annulment,
or direction, as the case may be, that has been canceled pursuant to the proviso
to the preceding sentence, in which event a new record date in respect thereof
shall be set pursuant to this paragraph.
(d) The ownership of Notes shall be proved by the Note Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note 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 Note.
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 the Corporate Trust Office: Corporate Trust
Services; 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 to the attention of the Office of the
Secretary or at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. NOTICE TO HOLDERS; WAIVER.
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 Note 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
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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 another
provision hereof that is required under the Trust Indenture Act to be included
in this Indenture by any of the provisions of such Act, such required provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, such
provision of the Act as so modified or excluded, as the case may be, shall be
deemed to apply to this Indenture.
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. SEVERABILITY CLAUSE.
In case any provision in this Indenture or in the Notes 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 Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, and, subject to Section 907, holders of Senior Indebtedness or
Entitled Persons in respect of Other Financial Obligations, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 112. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
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APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE WITHOUT REGARD
TO THE CONFLICTS OF LAWS PROVISIONS OF SUCH STATE.
Section 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Stated Maturity or any
other payment date of any of the 2004 Notes or the 2007 Notes shall not be a
Business Day at the Place of Payment of such Note at which such Note is
presented for payment, then (notwithstanding any other provision of this
Indenture or of the Notes), payment of principal of and premium, if any, and
interest on such Notes 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 such payment date and no interest
shall accrue for the period from and after such payment date.
ARTICLE TWO
FORM OF NOTES
Section 201. FORM AND DATING
(a) (i) The Global and Certificated Notes and the certificate of
authentication of the Trustee thereon with respect to the 2004 Notes shall be
substantially in the forms of Exhibit A or Exhibit B hereto, respectively, which
are hereby incorporated in and expressly made a part of this Indenture.
(ii) The Global and Certificated Notes and the certificate of
authentication of the Trustee thereon with respect to the 2007 Notes shall be
substantially in the forms of Exhibit C or Exhibit D hereto, respectively, which
are hereby incorporated in and expressly made a part of this Indenture.
(b) The Notes may have such letters, numbers or other marks of
identification and such legends and endorsements, stamped, printed, lithographed
or engraved thereon (i) as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, (ii) as may be required to
comply with this Indenture, any law or any rule of any securities exchange on
which the Notes may be listed and (iii) as may be necessary to conform to
customary usage. Each Note shall be dated the date of its authentication by the
Trustee. The Notes shall be issued only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof.
(c) (i) The 2004 Notes shall be issued initially in the form of one
global note substantially in the form of Exhibit A hereto (a "2004 Global
Note"). Upon issuance, such Global Note shall be duly executed by the Company
and authenticated by the Trustee as hereinafter provided and deposited with the
Trustee as custodian for the Depositary and
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registered in the name of Cede & Co., as nominee of the Depositary (such nominee
being referred to as the "2004 Global Note Holder"). The 2004 Global Note may be
exchanged for securities in definitive form substantially in the form of Exhibit
B hereto ("2004 Certificated Notes") pursuant to Section 308 hereof. Upon
issuance, any Certificated Note shall be duly executed by the Company and
authenticated by the Trustee as hereinafter provided.
(ii) The 2007 Notes shall be issued initially in the form of
one global note substantially in the form of Exhibit C hereto (a "2007 Global
Note"). Upon issuance, such Global Note shall be duly executed by the Company
and authenticated by the Trustee as hereinafter provided and deposited with the
Trustee as custodian for the Depositary and registered in the name of Cede &
Co., as nominee of the Depositary (such nominee being referred to as the "2007
Global Note Holder"). The 2007 Global Note may be exchanged for securities in
definitive form substantially in the form of Exhibit D hereto (" 2007
Certificated Notes") pursuant to Section 308 hereof. Upon issuance, any
Certificated Note shall be duly executed by the Company and authenticated by the
Trustee as hereinafter provided.
(d) Each Global Note shall bear the following legend on the face
thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO BANK UNITED CORP. OR THE REGISTRAR FOR
REGISTRATION OF TRANSFER OR EXCHANGE AND ANY NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFER OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND
NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 308 OF THE INDENTURE DATED AS OF
____________, 1997, BETWEEN BANK UNITED CORP., AS ISSUER, AND THE TRUSTEE
NAMED THEREIN, PURSUANT TO WHICH THIS NOTE WAS ISSUED.
(e) Definitive Notes shall be typed, printed, lithographed or
engraved or produced by any combination of such methods or produced in any other
manner permitted by the rules of
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any securities exchange on which such Notes may be listed, all as determined by
the officers of the Company executing such Notes, as evidenced by their
execution of such Notes.
ARTICLE THREE
THE NOTES
Section 301. TITLE AND TERMS.
The aggregate principal amount of 2004 Notes and 2007 Notes which
may be authenticated and delivered under this Indenture and Outstanding at any
time may not exceed $100,000,000 and $120,000,000, respectively, except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other 2004 Notes or 2007 Notes pursuant to Sections
304, 305, 309 or 906.
The 2004 Notes and the 2007 Notes shall each be issued in a single
series, known and designated, respectively, as the __% Subordinated Notes due
2004, and the __% Subordinated Notes due 2007. The Stated Maturity for the
payment of principal of (a) the 2004 Notes shall be _______, 2004, which Notes
shall bear interest at a rate of ____% per annum from the Issue Date, or from
the most recent Interest Payment Date to which interest has been paid thereon or
duly provided for, payable semiannually on ___ __ and ______ __ of each year
(commencing ____ __, 1997) until the principal thereof is paid or duly provided
for, and (b) the 2007 Notes shall be ______________, 2007, which Notes shall
bear interest at __% per annum from the Issue Date, or from the most recent
Interest Payment Date to which interest has been paid thereon or duly provided
for, payable semiannually on ___ __ and ______ __ of each year (commencing ____
__, 1997) until the principal thereof is paid or duly provided for.
The principal of and premium, if any, and interest on the Notes
shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York, maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; PROVIDED, HOWEVER,
that interest may be payable at the option of the Company by check mailed to the
address of the person entitled thereto as such address shall appear on the Note
Register.
Section 302. AUTHORIZED DENOMINATIONS.
The Notes shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, its President, a Vice Chairman or one of its Vice Presidents,
under its corporate seal reproduced or imprinted on the Notes by facsimile or
otherwise, and shall be attested by the
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Company's Secretary or one of its Assistant Secretaries, in each case by manual
or facsimile signature.
In the event that any of the Notes shall have been signed (either
manually or by facsimile) by a Person that shall have ceased to be an
appropriate officer of the Company before any such Note shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the Person who signed such Notes had not ceased to be such appropriate officer
of the Company, and any Note may be signed on behalf of the Company by such
Persons as, at the actual time of execution of such Note, shall be the proper
officers of the Company, although at the date of such Note or of the execution
of this instrument such Person was not such officer.
The Trustee shall, upon receipt of a Company Order requesting such
action, authenticate Notes for original issue up to the aggregate principal
amount not to exceed $100,000,000 Outstanding in respect of the 2004 Notes at
any given time in the form of a Global Note, and $120,000,000 Outstanding in
respect of the 2007 Notes at any given time in the form of a Global Note.
Upon the occurrence of any event specified in Section 308(a) hereof,
the Company shall execute and the Trustee shall authenticate and make available
for delivery to each beneficial owner identified by the Depositary, in exchange
for such beneficial owner's interest in the 2004 Global Note and in the 2007
Global Note, Certificated Notes representing Notes theretofore represented by
such Global Note.
At any time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Notes; and the Trustee in accordance with such Company Order
shall authenticate such Notes by manual signature of an authorized signatory of
the Trustee and make available for delivery such Notes as provided in this
Indenture and not otherwise. The Notes shall not be valid for any purpose unless
so authenticated.
A Note shall not be valid or entitled to any benefit under this
Indenture or obligatory for any purpose unless executed and issued by the
Company and authenticated by the manual signature of the Trustee as provided
herein. The signature of the Trustee shall be conclusive evidence, and the only
evidence, that the Note has been authenticated and delivered under this
Indenture and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Note to the Trustee for cancellation as
provided in Section 312 together with a written statement (which need not comply
with Section 103 and need not be accompanied by an Opinion of Counsel) stating
that such Note has never been issued and sold by the Company, for all purposes
of this Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall not be entitled to the benefits of this Indenture.
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Section 304. TEMPORARY NOTES.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as evidence
execution of such Notes.
If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at the office or agency of the Company in
a Place of Payment, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes the Company shall execute and
the Trustee shall authenticate and make available for delivery in exchange
therefor one or more definitive Notes, of any authorized denominations and of a
like aggregate principal amount and tenor. Until so exchanged the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
Section 305. REGISTRAR AND PAYING AGENT.
The Company shall maintain, pursuant to Section 1002 hereof, an
office or agency where the Notes may be presented for registration of transfer
or for exchange (the "Registrar"), an office or agency where Notes may be
presented for payment (the "Paying Agent") and an office or agency where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served.
The Company shall cause to be kept at such office 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 "Note Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes entitled to be registered or transferred as provided herein.
The Trustee, at its Corporate Trust Office, is initially appointed Registrar for
the purpose of registering Notes and transfers of Notes as herein provided. The
Company may, upon written notice to the Trustee, change the designation of the
Trustee as Registrar and appoint another Person to act as Registrar for purposes
of this Indenture. If any Person other than the Trustee acts as Registrar, the
Trustee shall have the right at any time, upon reasonable notice, to inspect or
examine the Note Register and to make such inquiries of the Registrar as the
Trustee shall in its discretion deem necessary or desirable in performing its
duties hereunder.
The Company shall enter into an appropriate agency agreement with
any Person designated by the Company as Registrar or Paying Agent that is not a
party to this Indenture, which agreement shall incorporate the provisions of the
Trust Indenture Act and shall implement the provisions of this Indenture that
relate to such Registrar or Paying Agent. Prior to the designation of any such
Person, the Company shall, by written notice (which notice shall include the
name and address of such Person), inform the Trustee of such designation. The
Trustee, at its
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Corporate Trust Office, is initially appointed Paying Agent under this
Indenture. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note 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 Note Register 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 Notes, 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 Notes, other than exchanges
pursuant to Section 304 or 906 not involving any transfer.
SECTION 306. PAYING AGENT TO HOLD MONEY IN TRUST. On or prior to
each due date of the principal, premium, or any payment of interest with respect
to any Note, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal, premium or interest when so becoming due.
The Company shall require each Paying Agent (other than the Trustee)
to agree in writing that such Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all money held by such Paying Agent for the payment of
principal, premium and interest with respect to the Notes, shall notify the
Trustee of any default by the Company in making any such payment and at any time
during the continuance of any such default, upon the written request of the
Trustee, shall forthwith pay to the Trustee all sums held in trust by such
Paying Agent.
The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed by such Paying
Agent. Upon complying with this Section 306, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 307. GLOBAL NOTES. (a) So long as the Global Notes are
registered in the name of the Depositary or its nominee, members of, or
participants in, the Depositary ("Agent Members") shall have no rights under
this Indenture with respect to the Global Notes held on their behalf by the
Depositary or the Trustee as its custodian, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Notes for all purposes. Notwithstanding the
foregoing, nothing herein shall (i) prevent the Company, the Trustee or any
agent of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or (ii)
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of Notes.
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(b) The Holder of each Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in such Global Note through Agent Members, to take any action which a
Holder of Notes is entitled to take under this Indenture or the Notes.
SECTION 308. TRANSFER AND EXCHANGE. (a) The Global Notes shall be
exchanged by the Company for Certificated Notes if the Depositary (i) (A) has
notified the Company that it is unwilling or unable to continue as, or ceases to
be, a clearing agency registered under Section 17A of the Exchange Act and (B) a
successor to the Depositary registered as a clearing agency under Section 17A of
the Exchange Act is not able to be appointed by the Company within 90 calendar
days or (ii) is at any time unwilling or unable to continue as Depositary and a
successor to the Depositary is not able to be appointed by the Company within 90
calendar days.
(b) If an Event of Default occurs and is continuing, the Company
shall, at the request of the Holder of each Global Note, exchange all or part of
such Global Note for one or more Certificated Notes; PROVIDED THAT the principal
amount of each of such Certificated Notes, and such Global Note, after such
exchange, shall be $1,000 or an integral multiple thereof.
(c) Whenever the Global Notes are exchanged as a whole for
Certificated Notes such Global Notes shall be surrendered by the Holder thereof
to the Trustee for cancellation. Whenever the Global Notes are exchanged in part
for one or more Certificated Notes pursuant to this Section 308, such Global
Notes shall be surrendered by the Holder thereof to the Trustee and the Trustee
shall make the appropriate notations thereon pursuant to Section 307(a) hereof.
All Certificated Notes issued in exchange for Global Notes or any portion
thereof shall be registered in such names, and delivered, as the Depositary
shall instruct the Trustee.
(d) A Holder may transfer a Note only upon the surrender of such
Note for registration of transfer. No such transfer shall be effected until, and
the transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer in the Note Register by the
Registrar. When Notes are presented to the Registrar with a request to register
the transfer of, or to exchange, such Notes, the Registrar shall register the
transfer or make such exchange as requested if its requirements for such
transactions and any applicable requirements hereunder are satisfied. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Certificated Notes at the Registrar's request.
(e) Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a Book Entry system maintained by such Holder (or its
agent), and that ownership of a beneficial interest in the Notes represented
thereby shall be required to be reflected in Book Entry form. Transfers of a
Global Note shall be limited to transfers in whole and not in part, to the
Depositary, its successors, and their respective nominees. Interests of
beneficial owners in a Global Note shall be transferred in accordance with the
rules and procedures of the Depositary (or its successors).
Section 309. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the Company
shall execute,
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and upon its written request the Trustee shall authenticate and make available
for delivery, in exchange for any such mutilated Note, a new Note containing
identical provisions 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 mutual satisfaction of the destruction, loss or theft of any
Note and (ii) such Note 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 Note has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company's request the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Note, a new Note containing identical provisions of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note 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 2004 or 2007 Note issued pursuant to this Section in lieu
of any such destroyed, lost or stolen Note shall constitute an original
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note 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 2004 Notes or 2007 Notes, as the case may be, 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 Notes.
Section 310. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note 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 such Note is registered at the close of business on the Regular
Record Date for such interest, which shall be _____ __ or ____ __ (whether or
not a Business Day) immediately preceding such Interest Payment Date.
Any interest on any Note 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:
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(1) The Company may elect to make payment of any Defaulted Interest
and any interest payable on such Defaulted Interest to the Persons in
whose names the Notes 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
Note 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 mailed,
first-class postage prepaid, to each Holder of Notes at his or her or its
address as it appears in the Note Register, 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 Notes
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, and any
interest payable on such Defaulted Interest, on the Notes in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Notes 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 Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Section 311. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer of any Note,
the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
may deem or treat the Person in whose name a Note is registered as the absolute
owner of such Note for the purpose of receiving payment of principal of and any
premium and any interest on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall be affected by notice to
the contrary.
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Section 312. CANCELLATION.
All Notes surrendered for payment, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Note 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 Notes previously authenticated hereunder which the Company has not issued
and sold, and all Notes so delivered shall be promptly cancelled by the Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes held by the Trustee shall be disposed of as
directed by a Company Order, except that the Trustee shall not be required to
destroy Notes.
If the Company shall acquire any of the Notes, such acquisition
shall not operate as a satisfaction of the indebtedness represented by such
Notes unless and until the same are delivered to the Trustee cancelled or for
cancellation.
Section 313. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 314. CUSIP NUMBER
The Company, in issuing either 2004 Notes or 2007 Notes, may use a
"CUSIP" number and, if so, the Trustee shall use the CUSIP number in any notice
to Holders as a convenience to such Holders PROVIDED THAT any such notice may
state that no representation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Notes and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Trustee shall promptly notify the Trustee of any change in CUSIP number.
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 Notes 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
(A) all Notes theretofore authenticated and delivered (other
than (i) Notes which have been destroyed, lost or stolen and which
have been replaced or
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paid as provided in Section 309 and (ii) Notes 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 cancelled or for cancellation; or
(B) the Company has deposited or caused to be deposited with
the Trustee as trust funds in trust an amount of money sufficient to
pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee and cancelled or for
cancellation, for principal, premium, if any, and interest to the
date of such deposit (in the case of Notes which have become due and
payable) or to the Stated Maturity, 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 Company 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 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 Notes 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.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default", whenever used herein with respect to the 2004
Notes and the 2007 Notes, 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
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pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Company under the Federal Bankruptcy Act or any other similar applicable
federal or state law, and such decree or order shall have continued
undischarged and unstayed for a period of 60 days; or a decree or order of
a court having jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or substantially all of its property, or for the winding up
or liquidation of its affairs, shall have been entered, and such decree or
order shall have continued undischarged and unstayed for a period of 60
days; or
(2) the Company shall institute proceedings to be adjudicated a
bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking
reorganization under the Federal Bankruptcy Act or any other similar
applicable federal or state law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of it or
substantially all of its property or shall make an assignment for the
benefit of creditors; or
(3) the entry by a court or supervisory authority having
jurisdiction in the premises and applying any federal or state bankruptcy,
insolvency, reorganization or other similar law or regulation of (a) a
decree or order for relief in respect of the Bank in an involuntary case
or proceeding or (b) a decree or order adjudging the Bank a bankrupt or
insolvent, or approving as properly filed, a petition seeking
reorganization, arrangement, adjustment or composition of, or in respect
of, the Bank, or ordering that a receiver, liquidator, assignee,
custodian, trustee, conservator, sequestrator or other similar official
shall be appointed as to, or take possession of, the Bank or any
substantial part of its property without its consent, or ordering the
winding up or liquidation of the affairs of the Bank, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(4) the commencement by the Bank of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law,
or the consent by it to the entry of an order for relief in an involuntary
case under any such law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of
the 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 Bank in furtherance of any action;
or
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(5) The FDIC or any successor thereto shall be appointed by any court
or the OTS or any successor thereto to act as conservator, liquidator,
receiver or other legal custodian for the Bank.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Notes 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 Notes may declare the
unpaid principal of (and premium, if any), PLUS accrued and unpaid interest on
all of the Notes then Outstanding to be immediately due and payable, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (and premium, if any) and accrued
interest shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Notes 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 Notes, 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 Notes,
(B) the principal of and premium, if any, on any Notes which
have become due otherwise than by such declaration of acceleration
and any interest thereon at the rate or rates prescribed therefor in
such Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Notes, 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 Notes, other than the
non-payment of the principal of Notes 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.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if
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(1) default is made in the payment of any interest on any Note 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 Note at the Maturity thereof,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes 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 Notes; 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 the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
Property of the Company or any other obligor upon such Notes, wherever situated.
If an Event of Default with respect to Notes occurs and is
continuing, the Trustee may in its discretion, subject to applicable law,
proceed to protect and enforce its rights and the rights of the Holders of Notes
under this Indenture 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 Notes), 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,
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arrangement, adjustment or composition affecting the Notes 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.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes 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 Notes 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 Notes 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;
SECOND: to the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Notes 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 Notes for principal and any premium and interest,
respectively; and
THIRD: the balance, if any, to the Company.
Section 507. LIMITATION ON SUITS.
No Holder of any Note 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 Notes;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Notes 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;
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(4) the Trustee for 30 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 30-day period by the Holders of a
majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture 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 Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 310) any
interest on such Note on the Stated Maturity or Maturities expressed in such
Note 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 Notes in the last paragraph of
Section 309, 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.
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Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Notes 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.
Section 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Notes 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 Notes, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to Holders not taking part in such direction, and
(3) 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 Notes may on behalf of the Holders of all the Notes waive any past
default hereunder and its consequences, except a default
(1) in the payment of the principal of or any premium, if any, or
interest on any Note, 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 Note.
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
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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 STAY OR EXTENSION LAWS.
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 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 an Event of Default or a default in the performance and
observance of any of the terms, provisions and conditions of this Indenture
occurs hereunder with respect to the Notes, the Trustee shall give the Holders
of Outstanding Notes notice of such default as and to the extent provided by the
Trust Indenture Act.
Section 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) 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
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or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) 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 may be sufficiently evidenced by a
Board Resolution;
(c) 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;
(d) 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;
(e) 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 indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) 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;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Notes relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture.
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Section 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Notes or the proceeds thereof.
Section 605. MAY HOLD NOTES.
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 Notes 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 such compensation for all
services rendered by it hereunder as the parties shall agree in writing
from time to time (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 or any of its powers or duties hereunder.
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Section 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within
the meaning of Section 310(b) 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.
Section 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
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 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 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.
(a) 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.
(b) The Trustee may resign at any time with respect to the Notes 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 Notes.
(c) The Trustee may be removed at any time with respect to the Notes
by Act of the Holders of a majority in principal amount of the Outstanding
Notes, delivered to the Trustee and 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
removal, the Trustee to be removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
(d) 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 Note 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
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(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, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Notes, or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Note 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 Notes and the
appointment of a successor Trustee or Trustees.
(e) 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 Notes, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee or Trustees with respect to the Notes (it being understood
that any such successor Trustee may be appointed with respect to the Notes and
that at any time there shall be only one Trustee with respect to the Notes) 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 Notes shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding Notes
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 Notes and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Notes
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 Note 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 Notes.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Notes and each appointment of a
successor Trustee with respect to the Notes to all Holders of Notes in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Notes and the address of its Corporate
Trust Office.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Notes, 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
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retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Notes, the Company, the retiring Trustee and such successor
Trustee shall execute and deliver an indenture supplemental hereto wherein such
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, such successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Notes to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Notes, 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 Notes 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 Trustee's 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 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 Notes; 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 Notes to which the
appointment of such successor Trustee relates.
(c) 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 paragraph (a) and (b) of this Section, as the case may be.
(d) 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 Notes 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
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adopt such authentication and deliver the Notes so authenticated with the same
effect as if such successor Trustee had itself authenticated such Notes.
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with the provisions of Section 311 of the
Trust Indenture Act.
Section 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Notes which shall be authorized to act on behalf of the Trustee
to authenticate Notes issued upon original issue and upon exchange or
registration of transfer or pursuant to Section 309, and Notes 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 Notes 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 mail written notice of
such appointment by first-class mail,
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postage prepaid, to all Holders of 2004 Notes and the 2007 Notes, as applicable,
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Note Register. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The Trustee is initially designated as the Authenticating Agent for
the Notes.
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,
not more than 60 days after each semi-annual interest payment, as the case may
be, where such interest payments are to be made, and at such other times as the
Trustee may request in writing, within 30 days after receipt by the Company of
any such request, a list in such form as the Trustee may reasonably require
containing all information in the possession or control of the Company, or any
of its paying agents other than the Trustee, as to the names and addresses of
the Holders of Notes obtained since the date as of which the next previous list,
if any, was furnished.
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) 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 Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) Holders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Holders with respect to their rights under this
Indenture or under the Notes.
(c) Every Holder of Notes 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.
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Section 703. REPORTS BY TRUSTEE.
(a) Within 60 days after _____ __ of each year commencing with the
year 1997, if and so long as any Notes shall be outstanding hereunder, the
Trustee shall transmit to Holders such reports as may be required pursuant to
Section 313 of the Trust Indenture Act.
(b) 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 Notes are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Notes 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 Section 314 of the Trust
Indenture Act at the times and in the manner provided pursuant thereto; 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 covenants that it will not merge or consolidate with any
other corporation or sell or convey all or substantially all of its assets to
any person, firm or corporation, except that the Company may merge or
consolidate with, or sell or convey all or substantially all of its assets to,
any other corporation, PROVIDED that (i) either the Company shall be the
continuing corporation, or the successor corporation (if other than the Company)
shall be a corporation organized and existing under the laws of the United
States of America or a State thereof and such corporation shall expressly assume
the due and punctual payment of the principal of and premium, if any, and
interest on all the Notes, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company or such successor corporation, as the
case may be, by supplemental indenture in form satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation, and (ii) the Company
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition.
Section 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale or conveyance of all or substantially all of
the assets of the Company in accordance with Section 801, the successor Person
formed by such consolidation or
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into which the Company is merged or to which such sale or conveyance is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Notes.
Section 803. OPINION OF COUNSEL TO TRUSTEE.
The Trustee may receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article.
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 Notes; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any of the Notes (and if such covenants are to be for
the benefit of less than all of the Notes, stating that such covenants are
expressly being included solely for the benefit of such Notes) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to provide for uncertificated Notes in addition to or in place of
Certificated Notes; or
(5) to change or eliminate any of the provisions of this Indenture,
PROVIDED THAT any such change or elimination shall become effective only
when there is no Note Outstanding created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Notes; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes 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
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trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(8) subject to Section 907, to add to, change or eliminate any of the
provisions of Article Twelve in respect of the Notes, including
outstanding securities, PROVIDED that any such addition, change or
elimination shall not adversely affect the interests of the Holders of
Outstanding Notes in any material respect;
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
add 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 Notes in
any material respect; or
(10) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66-2/3% in
principal amount of the Outstanding Notes affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, and
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 for the purpose of waiving or modifying in any manner the
rights of the Holders of Notes under this Indenture; PROVIDED, HOWEVER, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any of the 2004 or 2007 Notes,
or change any Place of Payment where, or the coin or currency in which,
any such Note 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
(2) reduce the percentage in principal amount of the Outstanding 2004
Notes or 2007 Notes, 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 1006 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 Note affected
thereby.
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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 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 Notes 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 NOTES TO SUPPLEMENTAL INDENTURES.
Notes 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 Notes 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 Notes.
Section 907. SUBORDINATION UNIMPAIRED.
No provision in any supplemental indenture that affects the superior
position of the holders of Senior Indebtedness shall be effective against any
holder of Senior Indebtedness, unless such holder shall have consented thereto.
Notwithstanding any provision in this Indenture or otherwise, the rights of
Entitled Persons in respect of Other Financial Obligations under this Indenture
and otherwise in respect of any of the 2004 Notes or the 2007 Notes may, at any
time and from time to time, be modified in any respect or eliminated without the
consent of any Entitled Person in respect of Other Financial Obligations.
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ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Holders that
it shall duly and punctually pay the principal of and any premium and interest
on the Notes in accordance with the terms of the Notes and this Indenture.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for Notes an
office or agency where Notes may be presented or surrendered for payment, where
Notes may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes 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 Notes 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 Notes 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 NOTES PAYMENTS TO BE HELD IN TRUST.
If the Company, any subsidiary of the Company or any of their
respective affiliates shall at any time act as its own Paying Agent with respect
to the Notes, such Paying Agent shall, on or before each due date of the
principal of or any premium or interest on any of the Notes, 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 thereon 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 the
Notes, it shall, on or prior to each due date of the principal of or any premium
or interest on any Notes, 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.
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The Company shall cause the Paying Agent for the Notes other than
the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent shall (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the Notes)
in the making of any payment in respect of the Notes, 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 Notes.
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 Note 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 Note 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.
Section 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company shall deliver to the Trustee, within 60 days after the
end of each fiscal year of the Company ending after the date hereof, a
certificate in accordance with Section 314(a)(4) of the Trust Indenture Act
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 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. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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Section 1006. WAIVER OF CERTAIN COVENANTS.
The Company may elect in any particular instance not to comply with
any term, provision or condition of any covenant (other than the covenants
contained in Sections 1001 to 1005) made applicable to the Notes pursuant to
Section 301 hereof with respect to the Notes if before the time for such
compliance the Holders of at least 66-2/3% in principal amount of the
Outstanding Notes 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 any term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
Section 1007. MAINTENANCE OF STATUS OF SUBSIDIARIES AS INSURED
DEPOSITORY INSTITUTION.
The Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect the status of each of its
subsidiaries that is a depository institution (including the Bank) as an insured
depository institution and do or cause to be done all things necessary to ensure
that savings accounts of each such subsidiary are insured by the FDIC or any
successor organization up to the maximum amount permitted by 12 U.S.C. Section
1811 ET SEQ. and the regulations thereunder or any succeeding federal law,
except as to individual accounts or interests in employee benefit plans that are
not entitled to "pass-through" insurance under 12 U.S.C. Section 1821(a)(1)(D).
Section 1008. CAPITAL AND DIVIDENDS.
The Company shall not, and shall not permit any subsidiary to,
declare or pay any dividend or make any other distribution on any shares of its
common stock (other than dividends payable solely in shares of its common
stock), or make or permit any subsidiary to make any payment to purchase or
otherwise retire or acquire any such shares, if at the time of such action the
Company or any such subsidiary is not in compliance, or would fail as a result
of such action to remain in compliance, with any minimum capital maintenance
requirements established by the Federal Reserve Board or another banking
regulator that are then applicable to the Company or any such subsidiary.
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ARTICLE ELEVEN
SUBORDINATION OF NOTES
Section 1101. NOTES SUBORDINATED TO EXTENT PROVIDED.
The Company covenants and agrees, and each Holder of a Note, by his
or her acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article, the indebtedness
represented by the Notes and the payment of the principal of and premium, if
any, and interest on each and all of the Notes are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness, and, to the extent set forth in Section 1115, to Other
Financial Obligations.
Section 1102. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving solvency or bankruptcy, or
(c) any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of the Company, then and in any such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all amounts
due or to become due on or in respect of all Senior Indebtedness, or provision
shall be made for such payment in money or money's worth, before the Holders of
the Notes are entitled to receive any payment on account of principal of or
premium, if any, or interest on the Notes, and to that end the holders of Senior
Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, which may be payable or deliverable in respect of the
2004 Notes or the 2007 Notes in any such case, proceeding, dissolution,
liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or Holder of any 2004 Note or 2007 Note shall have received
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, before all Senior Indebtedness is paid
in full or payment thereof provided for, and if such fact shall, at or prior to
the time of such payment or distribution, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered by the Trustee or the Holder, as
the case may be, forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or
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readjustment, which are subordinated in right of payment to all Senior
Indebtedness which may at the time be outstanding to substantially the same
extent as, or to a greater extent than, the Notes are so subordinated as
provided in this Article. The consolidation of the Company with, or the merger
of the Company into, another Person or the liquidation or dissolution of the
Company following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article Eight shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer such properties
and assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article Eight.
Section 1103. PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION
OF NOTES.
In the event that any of the 2004 Notes or the 2007 Notes are
declared due and payable before their Stated Maturity, then and in such event
the holders of the Senior Indebtedness shall be entitled to receive payment in
full of all amounts due on or in respect of all Senior Indebtedness, or
provision shall be made for such payment in money or money's worth, before the
Holders of the 2004 Notes or the 2007 Notes are entitled to receive any payment
of principal of or premium, if any, or interest on the 2004 Notes or the 2007
Notes or on account of the purchase or other acquisition of the 2004 Notes or
the 2007 Notes.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any of the 2004 Notes or the
2007 Notes prohibited by the foregoing provisions of this Section, and if such
fact shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered by the Trustee or the Holder, as the case may
be, forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1102 would be applicable.
Section 1104. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
In the event and during the continuation of any default in the
payment of principal of or premium, if any, or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or in the
event that any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing permitting the holders of such Senior
Indebtedness (or a trustee on behalf of the holders thereof) to declare such
Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or in the event any judicial
proceeding shall be pending with respect to any such default in payment or event
of default, then no payment shall be made by the Company on account of principal
of or premium, if any, or
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interest on the Notes or on account of the purchase or other acquisition of any
of the 2004 Notes or the 2007 Notes.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any of the 2004 Notes or the
2007 Notes prohibited by the foregoing provisions of this Section, and if such
fact shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered by the Trustee or the Holder, as the case may
be, forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1102 would be applicable.
Section 1105. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or
in any of the Notes shall prevent (a) the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1102 or under the conditions
described in Section 1103 or 1104, from making payments at any time of principal
of or interest on the Notes, or (b) the application by the Trustee or any Paying
Agent of any moneys deposited with it hereunder to the payment of or on account
of the principal of or premium, if any, or interest on the Notes and the
retention by the Holders of any moneys so received if, at the time of such
payment, the Trustee or such Paying Agent did not have knowledge that such
payment would have been prohibited by the provisions of this Article.
Section 1106. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Notes shall be subrogated (equally and ratably with the holders
of all indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Notes are
subordinated and is entitled to like rights of subrogation) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of and premium, if any, and interest on the Notes shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Notes or the Trustee would otherwise be entitled except for
the provisions of this Article, and no payments pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Notes or
the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Notes, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
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Section 1107. OBLIGATIONS OF COMPANY UNCONDITIONAL; PROVISIONS SOLELY
TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Indebtedness (and, in the case of Section 1115,
Entitled Persons in respect of Other Financial Obligations) on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the Notes
is intended to or shall: (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness, Entitled Persons in respect of Other
Financial Obligations and the Holders of the Notes, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness and the rights under
Section 1115 of Entitled Persons in respect of Other Financial Obligations, is
intended to rank equally with all other general obligations of the Company), to
pay to the Holders of the Notes the principal of and premium, if any, and
interest on the Notes as and when the same shall become due and payable in
accordance with their terms; (b) affect the relative rights against the Company
of the Holders of the Notes and creditors of the Company other than the holders
of Senior Indebtedness and of Entitled Persons in respect of Other Financial
Obligations; or (c) prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness, and under Section 1115 of Entitled Persons in respect of
Other Financial Obligations, to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
Section 1108. AUTHORIZATION OF TRUSTEE TO EFFECTUATE SUBORDINATION
OF NOTES.
Each Holder of a Note, by his or her acceptance thereof, authorizes
and expressly directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to effectuate the subordination and payment
provided in this Article.
Section 1109. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness
and Entitled Persons in respect of Other Financial Obligations, as the case may
be, to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness and Entitled Persons in respect of
Other Financial Obligations, as the case may be, may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes, and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness or Entitled Persons in respect of Other Financial Obligations, do
any one or more of the following: (i) change the
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manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness or Other Financial Obligations, or otherwise amend or
supplement in any manner Senior Indebtedness or Other Financial Obligations or
any instrument evidencing the same or any agreement under which Senior
Indebtedness or Other Financial Obligations is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness or Other Financial Obligations; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
Section 1110. NOTICE TO TRUSTEE; TRUSTEE NOT CHARGED WITH KNOWLEDGE
OF PROHIBITION.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment or
distribution to or by the Trustee in respect of the any of the 2004 Notes or the
2007 Notes. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment or
distribution to or by the Trustee in respect of any of the 2004 Notes or the
2007 Notes, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Indebtedness or from any trustee
therefor or from any Entitled Persons in respect of Other Financial Obligations,
and, prior to the receipt of any such written notice, the Trustee shall be
entitled in all respects to assume that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) or an Entitled Person in respect of Other
Financial Obligations to establish that such notice has been given by a holder
of Senior Indebtedness (or a trustee therefor) or an Entitled Person in respect
of Other Financial Obligations. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness or an Entitled Person in respect of Other
Financial Obligations to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
or Other Financial Obligations held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment or distribution to
such Person pending judicial determination as to the right of such Person to
receive such payment.
Section 1111. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee and the Holders of the Notes shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution,
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delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company and the Entitled Persons in respect of Other Financial Obligations,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
Section 1112. NO FIDUCIARY DUTY TO HOLDERS OF SENIOR INDEBTEDNESS OR
OTHER FINANCIAL OBLIGATIONS.
The Trustee shall not be deemed to owe any duty to the holders of
Senior Indebtedness of the Company or Entitled Persons in respect of Other
Financial Obligations, except as provided in this Article.
Section 1113. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS OF COMPANY.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Indebtedness or Other Financial Obligations of
the Company at any time held by it to the same extent as any other holder of
such Senior Indebtedness or of any Entitled Person in respect of Other Financial
Obligations, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder or as such Entitled Person.
Section 1114. ARTICLE APPLICABLE TO PAYING AGENTS .
(a) In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1113 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 1115. 2004 NOTES AND 2007 NOTES TO RANK PARI PASSU WITH EACH
OTHER; PAYMENT OF PROCEEDS IN CERTAIN CASES.
(a) Subject to the provisions of this Section, the 2004 Notes and
the 2007 Notes shall rank pari passu in right of payment with each other.
(b) Upon the occurrence of any of the events specified in clauses
(a), (b) and (c) of the first paragraph of Section 1102, the provisions of that
Section shall be given effect to determine the amount of cash, property or
securities which may be payable or deliverable as between the holders of Senior
Indebtedness, on the one hand, and the Holders of any of the 2004 Notes or the
2007 Notes, on the other hand.
(c) If, after giving effect to the provisions of Section 1102 and
Section 1106, any amount of cash, property or securities shall be available for
payment or distribution in respect of the Notes ("EXCESS PROCEEDS"), and, if at
such time, any Entitled Persons in respect of Other
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Financial Obligations shall not have received payment in full of all amounts due
or to become due on or in respect of such Other Financial Obligations (and
provision shall not have been made for such payment in money or money's worth),
then such Excess Proceeds shall first be applied (ratably with any amount of
cash, property or securities available for payment or distribution in respect of
any other indebtedness of the Company that by its express terms provides for the
payment over of amounts corresponding to Excess Proceeds to Entitled Persons in
respect of Other Financial Obligations) to pay or provide for the payment of the
Other Financial Obligations remaining unpaid, to the extent necessary to pay all
Other Financial Obligations in full, after giving effect to any concurrent
payment or distribution to or for Entitled Persons in respect of Other Financial
Obligations. Any Excess Proceeds remaining after the payment (or provision for
payment) in full of all Other Financial Obligations shall be available for
payment or distribution in respect of the Notes.
(d) In the event that, notwithstanding the foregoing provisions of
subsection (c) of this Section, the Trustee or Holder of any Note shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all Other Financial
Obligations are paid in full or payment thereof duly provided for, and if such
fact shall, at or prior to the time of such payment or distribution have been
made known to the Trustee or, as the case may be, such Holder, then and in such
event, subject to any obligation that the Trustee or such Holder may have
pursuant to Section 1102, such payment or distribution shall be paid over or
delivered by the Trustee or the Holder, as the case may be, forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for
payment in accordance with subsection (c) of this Section.
(e) Subject to the payment in full of all Other Financial
Obligations, the Holders of the Notes shall be subrogated (equally and ratably
with the holders of all indebtedness of the Company that by its express terms
provides for the payment over of amounts corresponding to Excess Proceeds to
Entitled Persons in respect of Other Financial Obligations and is entitled to
like rights of subrogation) to the rights of the Entitled Persons in respect of
Other Financial Obligations to receive payments and distributions of cash,
property and securities applicable to the Other Financial Obligations until the
principal of and interest on the Notes shall be paid in full. For purposes of
such subrogation, no payments or distributions to Entitled Persons in respect of
Other Financial Obligations of any cash, property or securities to which Holders
of the Notes or the Trustee would be entitled except for the provisions of this
Section, and no payments over pursuant to the provisions of this Section to
Entitled Persons in respect of Other Financial Obligations by Holders of Notes
or the Trustee, shall, as among the Company, its creditors other than Entitled
Persons in respect of Other Financial Obligations and the Holders of Notes, be
deemed to be a payment or distribution by the Company to or on account of the
Other Financial Obligations.
(f) The provisions of subsections (c), (d) and (e) of this Section
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Notes, on the one hand, and the Entitled Persons in respect
of Other Financial Obligations, on the other hand, after giving effect to the
rights of the holders of Senior Indebtedness, as provided in this Article.
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Nothing contained in subsections (c), (d) and (e) of this Section is intended to
or shall affect the relative rights against the Company of the Holders of the
Notes and (1) the holders of Senior Indebtedness, (2) the holders of
Indebtedness other than holders of indebtedness that by its express terms
provides for the payment over of amounts corresponding to Excess Proceeds to
Entitled Persons in respect of Other Financial Obligations or (3) other
creditors of the Company other than Entitled Persons in respect of Other
Financial Obligations.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 1201. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of Holders, and any
Registrar and Paying Agent may make reasonable rules for their functions;
PROVIDED THAT no such rule shall conflict with terms of this Indenture or the
Trust Indenture Act.
SECTION 1203. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under the Notes or this Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation, solely by reason of its status as a director, officer, employee,
incorporator or stockholder of the Company. By accepting a Note, each Holder
waives and releases all such liability (but only such liability) as part of the
consideration for issuance of such Note to such Holder.
SECTION 1203. COUNTERPARTS. This Indenture may be executed in any
number of counterparts and by the parties thereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 1204. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
BANK UNITED CORP.
By ______________________________
Name:
Title
Attest:
THE BANK OF NEW YORK,
AS TRUSTEE
By ______________________________
Name:
Title
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __ day of _____, 1997, before me personally came ____________, to
me known, who, being by me duly sworn, did depose and say that he is a _________
of BANK UNITED CORP., one of the parties described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
______________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___th day of ______, 1997, before me personally came ____________,
to me known, who, being by me duly sworn, did depose and say that he is
Corporate Trust Officer of The Bank of New York, one of the parties described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
______________________________
<PAGE>
EXHIBIT A
[FORM OF 2004 NOTE GLOBAL NOTE]
<PAGE>
EXHIBIT A
FORM OF 2004 GLOBAL NOTE
FORM OF FACE OF 2004 GLOBAL NOTE
BANK UNITED CORP.
$100,000,000
No. CUSIP No.
THIS NOTE IS A SUBORDINATED DEBT SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO BANK UNITED CORP. OR THE REGISTRAR FOR
REGISTRATION OF TRANSFER OR EXCHANGE AND ANY NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFER OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN
PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 308 OF THE INDENTURE DATED AS OF _______
__, 1997, BETWEEN BANK UNITED CORP., AS ISSUER, AND THE TRUSTEE NAMED
THEREIN, PURSUANT TO WHICH THIS NOTE WAS ISSUED.
<PAGE>
2004 GLOBAL NOTE
REPRESENTING ___% SUBORDINATED NOTES DUE 2004
Bank United Corp., a Delaware corporation, for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, the principal
sum of ___________, on _________ __, 2004.
Interest Payment Dates: [____] and [_____], commencing [____].
Record Dates: [____] and [_____].
Reference is hereby made to the further provisions of this 2004
Global Note 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 duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this 2004 Global Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purposes.
IN WITNESS WHEREOF, Bank United Corp. has caused this 2004 Global
Note to be duly executed under its corporate seal.
Dated:
BANK UNITED CORP.
By: ______________________
Name:
Title:
[Corporate Seal]
Attest:
____________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
______________________,
as Trustee, certifies that this 2004 Global Note is one of the Subordinated
Debt Securities referred to in the Indenture.
By: ________________________________
Authorized Signatory
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FORM OF REVERSE SIDE OF 2004 GLOBAL NOTE
BANK UNITED CORP.
2004 GLOBAL NOTE
REPRESENTING ___% SUBORDINATED NOTES DUE 2004
I. INDENTURE.
This 2004 Global Note is one of a duly authorized issue of debt
securities of the Company (as defined below) designated as its "__% Subordinated
Notes due 2004" (the "2004 Notes") limited in aggregate principal amount to
$100,000,000, issued under an indenture dated as of ____ __, 1997 (as further
amended or supplemented from time to time, the "Indenture") among the Company,
as issuer, and ______________, as trustee (the "Trustee," which term includes
any successor Trustee under the Indenture), to which Indenture reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and each Holder of
2004 Notes and of the terms upon which the 2004 Notes are, and are to be,
authenticated and delivered. The summary of the terms of this 2004 Global Note
contained herein does not purport to be complete and is qualified by reference
to the Indenture. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this 2004 Global Note and the terms of the
Indenture, the terms of the Indenture shall control. All capitalized terms used
in this 2004 Global Note which are not defined herein shall have the meanings
assigned to them in the Indenture.
II. PRINCIPAL AND INTEREST.
Bank United Corp., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called "the Company"), promises to pay the principal amount of this 2004
Global Note to the Holder hereof on _____ __, 2004.
The Company shall pay interest on this 2004 Global Note at a rate
of ___% PER ANNUM, from ________ __, 1997 or from the most recent Interest
Payment Date thereafter to which interest has been paid or duly provided for,
semiannually in arrears on _____ __ and ______ __ of each year, commencing on
__________, 1997, to the Holder hereof until the principal amount hereof is paid
or duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture, be paid to the Person in whose name this 2004 Global
Note (or the 2004 Note in exchange or substitution for which this 2004 Global
Note was issued) is registered at the close of business on the Record Date for
interest payable on such Interest Payment Date. The Record Date for any interest
payment is the close of business on _____ or _____, as the case may be, whether
or not a Business Day, immediately preceding the Interest Payment Date on which
such interest is payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") shall forthwith cease to be payable to the
Holder on such Record Date and
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shall be paid as provided in Section 310 of the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
Each payment of interest in respect of an Interest Payment Date
will include interest accrued through the day before such Interest Payment Date.
If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
To the extent lawful, the Company shall pay interest on Defaulted
Interest (without regard to any applicable grace period) at the same rate. The
Company's obligation pursuant to the previous sentence shall apply whether such
overdue amount is due at its Stated Maturity or otherwise.
The 2004 Notes are not redeemable prior to maturity.
III. METHOD OF PAYMENT.
The Company, through the Paying Agent, shall pay interest on this
2004 Global Note to the registered Holder of this 2004 Global Note, as provided
above. The Holder must surrender this 2004 Global Note to a Paying Agent to
collect principal payments. The Company will pay principal, premium, if any, and
interest in money of the United States of America that at the time of payment is
legal tender for payment of all debts, public and private. Principal, premium,
if any, and interest shall be paid by check mailed to the registered Holders of
2004 Notes at their registered addresses; PROVIDED that all payments with
respect to 2004 Notes the Holders of which have given wire transfer instructions
to the Company will be required to be made by wire transfer of immediately
available funds to the accounts specified by the Holders thereof.
IV. REGISTRAR AND PAYING AGENT.
Initially, the Trustee will act as Registrar and Paying Agent
under the Indenture. The Company may, upon written notice to the Trustee,
appoint and change any Registrar or Paying Agent. If the Company or any of its
Affiliates acts as Paying Agent, the Company or such Affiliate shall segregate
the funds held by it as Paying Agent and hold them in trust for the benefit of
the Holders of 2004 Notes or the Trustee.
V. SUBORDINATION
The indebtedness evidenced by this 2004 Global Note is, to the
extent provided in Article Eleven of the Indenture, subordinate and subject in
right of payment to the prior payment in full of all Senior Indebtedness (as
defined in the Indenture), and this 2004 Global Note is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this 2004
Global Note, by accepting the same, agrees that each holder of Senior
Indebtedness, whether created or acquired before or after the issuance of the
2004 Notes, shall be deemed conclusively
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to have relied on such provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness. The Indenture also provides that
if, upon the occurrence of certain events of bankruptcy or insolvency relating
to the Company or bankruptcy, insolvency, receivership or similar proceedings of
Bank United, a federally chartered savings bank and indirect subsidiary of the
Company ("Bank"), there remains, after giving effect to such subordination
provisions, any amount of cash, property or securities available for payment or
distribution in respect of 2004 Notes (as defined in the Indenture, "Excess
Proceeds"), and if, at such time, any Entitled Person (as defined in the
Indenture) has not received payment in full of all amounts due or to become due
on or in respect of Other Financial Obligations (as defined in the Indenture),
then such Excess Proceeds shall first be applied to pay or provide for the
payment in full of such Other Financial Obligations before any payment or
distribution may be made in respect of 2004 Notes. This 2004 Global Note is also
issued subject to the provisions of the Indenture regarding payments to Entitled
Persons in respect of Other Financial Obligations. Each Holder of this 2004
Global Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination of
this 2004 Global Note and payment of Excess Proceeds as provided in the
Indenture and (c) appoints the Trustee as his attorney-in-fact for any and all
such purposes.
VI. NO MANDATORY REDEMPTION.
The 2004 Notes are not subject to any sinking fund or mandatory
redemption.
VII. THE 2004 GLOBAL NOTE.
So long as this 2004 Global Note is registered in the name of the
Depositary or its nominee, members of, or participants in, the Depositary
("Agent Members") shall have no rights under the Indenture with respect to this
2004 Global Note held on their behalf by the Depositary or the Trustee as its
custodian, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of this 2004 Global
Note for all purposes. Notwithstanding the foregoing, nothing herein shall (i)
prevent the Company, the Trustee or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or (ii) impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of 2004 Notes.
The Holder of this 2004 Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests in this 2004 Global Note through Agent Members, to take any
action which a Holder of 2004 Notes is entitled to take under the Indenture or
the 2004 Notes.
VIII. TRANSFER AND EXCHANGE.
The Holder of this 2004 Global Note shall, by acceptance of this
2004 Global Note, agree that transfers of beneficial interests in this 2004
Global Note may be effected only through a book entry system maintained by such
Holder (or its agent), and that ownership of a
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beneficial interest in the 2004 Notes represented thereby shall be required to
be reflected in book entry form.
Transfers of this 2004 Global Note shall be limited to transfers
in whole and not in part, to the Depositary, its successors, and their
respective nominees. Interests of beneficial owners in this 2004 Global Note
shall be transferred in accordance with the rules and procedures of the
Depositary (or its successors).
This 2004 Global Note shall be exchanged by the Company for one
or more 2004 Certificated Notes as specified in Section 308 of the Indenture if,
among other things, the Depositary (a) (i) has notified the Company that it is
unwilling or unable to continue as, or ceases to be, a clearing agency
registered under Section 17A of the Exchange Act and (ii) a successor to the
Depositary registered as a clearing agency under Section 17A of the Exchange Act
is not able to be appointed by the Company within 90 calendar days or (b) is at
any time unwilling or unable to continue as Depositary and a successor to the
Depositary is not able to be appointed by the Company within 90 calendar days.
If an Event of Default occurs and is continuing, the Company shall, at the
request of the Holder hereof, exchange all or part of this 2004 Global Note for
one or more 2004 Certificated Notes; PROVIDED that the principal amount of each
of such 2004 Certificated Notes, and this 2004 Global Note, after such exchange,
shall be $1,000 or an integral multiple thereof. Whenever this 2004 Global Note
is exchanged as a whole for one or more 2004 Certificated Notes, it shall be
surrendered by the Holder hereof to the Trustee for cancellation. Whenever this
2004 Global Note is exchanged in part for one or more 2004 Certificated Notes,
it shall be surrendered by the Holder hereof to the Trustee and the Trustee
shall make the appropriate notations hereon pursuant to Section 307(a) of the
Indenture. All 2004 Certificated Notes issued in exchange for this 2004 Global
Note or any portion hereof shall be registered in such names, and delivered, as
the Depositary shall instruct the Trustee. Interests in this 2004 Global Note
may not be exchanged for 2004 Certificated Notes other than as provided in this
paragraph.
IX. DENOMINATIONS.
The 2004 Notes are issuable only in registered form, without
coupons, in denominations of $1,000 and integral multiples thereof of principal
amount.
X. UNCLAIMED MONEY
If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee or Paying Agent shall pay
the money back to the Company at its request unless an abandoned property law
designates another Person. After any such payment, Holders of 2004 Notes
entitled to the money must look only to the Company and not to the Trustee for
payment unless such abandoned property law designates another Person.
XI. AMENDMENT, WAIVER.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the 2004 Notes may be amended with the written consent of the
Holders of not less than 66-2/3% in
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principal amount of the outstanding 2004 Notes affected by such amendment
[(which consent may, but need not, be given in connection with any tender offer
or exchange offer for 2004 Notes)] and (ii) any past default or Event of Default
and its consequences may be waived with the written consent of the Holders of at
least 66-2/3% in principal amount of the outstanding 2004 Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of any Holder
of 2004 Notes, the Company and the Trustee may amend the Indenture or the 2004
Notes, among other things, (i) to evidence the succession of another Person to
the Company and the assumption by such successor of the covenants of the Company
under the Indenture and contained in the 2004 Notes; (ii) to add to the
covenants of the Company for the benefit of the Holders of all or any of the
2004 Notes (and if such covenants are to be for the benefit of less than all of
the Notes, stating that such covenants are expressly being included solely for
the benefit of such Notes) or to surrender any right or power herein conferred
upon the Company; (iii) to add any additional Events of Default; (iv) to provide
for uncertificated 2004 Notes in addition to or in place of certificated 2004
Notes; (v) to change or eliminate any of the provisions of the Indenture,
PROVIDED that any such change or elimination shall become effective only when
there is no 2004 Note outstanding created prior to the execution of such
amendment which is entitled to the benefit of such provision; (vi) to secure the
2004 Notes; (vii) to evidence and provide for the acceptance of appointment
under the Indenture of a successor Trustee with respect to the Notes and to add
to or change any of the provisions of the Indenture as are necessary to provide
for or facilitate the administration of the trusts under the Indenture by more
than one Trustee; (viii) to add to, change or eliminate any of the provisions of
Article Twelve of the Indenture in respect of the 2004 Notes, PROVIDED that any
such addition, change or elimination shall not adversely affect the interests of
the Holders of 2004 Notes in any material respect; (ix) to cure any ambiguity in
the Indenture or to correct or supplement any provision in the Indenture which
may be inconsistent with any other provision therein or to add any other
provision with respect to matters or questions arising under the Indenture,
PROVIDED that such actions shall not adversely affect the interests of the
Holders of 2004 Notes in any material respect; or (x) to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act.
XII. DEFAULTS AND REMEDIES.
An Event of Default is any of certain events involving a
bankruptcy, insolvency or reorganization of the Company, or bankruptcy,
insolvency, receivership or similar proceedings of the Bank. If an Event of
Default occurs and is continuing, either the Trustee or the holders of at least
25% in aggregate principal amount of the 2004 Notes then outstanding may declare
the unpaid principal of (and premium, if any, on) all the 2004 Notes, plus
accrued and unpaid interest thereon, to be immediately due and payable. Holders
of 2004 Notes may not enforce the Indenture or the 2004 Notes except as provided
in the Indenture. The foregoing provision would be subject as to enforcement to
the broad equity powers of a federal bankruptcy court and to the determination
by that court of the nature of the rights of the Holders of the 2004 Notes. The
Company is required to furnish annually to the Trustee a statement as to the
performance by the Company of its obligations under the Indenture and as to any
default in such performance. Under certain circumstances, any declaration of
acceleration with respect to the 2004 Notes may be rescinded and past defaults
(except, unless theretofore cured, a default in the payment of principal of or
premium, if any, or
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interest on the 2004 Notes) may be waived by the holders of a majority in
aggregate principal amount of the 2004 Notes then outstanding.
XIII. LIMITED RIGHT OF ACCELERATION.
The 2004 Notes may be accelerated only in the case of an Event of
Default as described above. The Indenture does not provide for any right of
acceleration of the payment of the principal of the 2004 Notes upon a default in
the payment of principal of or premium, if any, or interest on the 2004 Notes,
or a default in the performance of any covenant or agreement in the 2004 Notes
or in the Indenture. In the event of a default in the payment of principal,
premium, if any, or interest, the holder of a 2004 Note (or the Trustee on
behalf of the Holders of all of the 2004 Notes affected) may, subject to certain
limitations and conditions, seek to enforce payment of such principal, premium
or interest.
XIV. MAINTENANCE OF STATUS OF SUBSIDIARIES AS INSURED DEPOSITORY
INSTITUTIONS.
The Company has agreed that it will do or cause to be done all
things necessary to preserve and keep in full force and effect the status of
each of its subsidiaries that is a depository institution (including the Bank)
as an insured depository institution and do or cause to be done all things
necessary to ensure that savings accounts of each such subsidiary are insured by
the FDIC or any successor organization up to the maximum amount permitted by 12
U.S.C. Section 1811 ET SEQ. and the regulations thereunder or any succeeding
federal law, except as to individual accounts or interests in employee benefit
plans that are not entitled to "pass-through" insurance under 12 U.S.C. Section
1821(a)(1)(D).
XV. INDIVIDUAL RIGHTS OF TRUSTEE.
Subject to certain limitations imposed by the Trust Indenture
Act, the Trustee or any Authenticating Agent, Paying Agent or Registrar, in its
individual or any other capacity, may become the owner or pledgee of the 2004
Notes and may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent or Registrar, as the
case may be, under the Indenture.
XVI. NO RECOURSE AGAINST CERTAIN OTHERS.
No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the 2004 Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation, solely by
reason of its status as a director, officer, employee, incorporator or
stockholder of the Company. By accepting a 2004 Note, each Holder waives and
releases all such liability (but only such liability) as part of the
consideration for issuance of such 2004 Note to such Holder.
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XVII. AUTHENTICATION.
This 2004 Global Note shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this 2004 Global Note.
XVIII. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of
2004 Notes or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with rights of survivorship
and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift
to Minors Act).
XIX. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Company has caused CUSIP numbers to
be printed on the 2004 Notes and has directed the Trustee to use CUSIP numbers
in notices to Holders of 2004 Notes as a convenience to such Holders. No
representation is made as to the correctness or accuracy of such numbers either
as printed in the notice or on the 2004 Notes and reliance may be placed only on
the other identification numbers printed on the 2004 Notes.
XX. GOVERNING LAW.
THE INDENTURE AND THIS 2004 GLOBAL NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder of 2004 Notes upon written
request and without charge to the Holder a copy of the Indenture which has in it
the text of this 2004 Global Note. Requests may be made to:
BANK UNITED CORP.
--------------------
--------------------
--------------------
Att.: Secretary
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ASSIGNMENT
(To be executed by the registered Holder if such
Holder desires to transfer this 2004 Global Note)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
- ----------------------------------
| |
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address of transferee)
- --------------------------------------------------------------------------------
this 2004 Global Note, together with all right, title and interest herein, and
does hereby irrevocably constitute and appoint ________________________________
Attorney to transfer this 2004 Global Note on the Security Register, with full
power of substitution.
Dated: _______________
- ----------------------------- --------------------------------
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this 2004 Global Note in every particular, without
alteration or any change whatsoever.
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EXHIBIT B
[FORM OF 2004 NOTE CERTIFICATED NOTE]
To be in the form of the 2004 Global Note with appropriate changes.
<PAGE>
EXHIBIT C
[FORM OF 2007 NOTE GLOBAL NOTE]
<PAGE>
EXHIBIT C
FORM OF 2007 GLOBAL NOTE
FORM OF FACE OF 2007 GLOBAL NOTE
BANK UNITED CORP.
$120,000,000
No. CUSIP No.
THIS NOTE IS A SUBORDINATED DEBT SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO BANK UNITED CORP. OR THE REGISTRAR FOR
REGISTRATION OF TRANSFER OR EXCHANGE AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN
PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 308 OF THE INDENTURE DATED AS OF
_______ __, 1997, BETWEEN BANK UNITED CORP., AS ISSUER, AND THE TRUSTEE
NAMED THEREIN, PURSUANT TO WHICH THIS NOTE WAS ISSUED.
<PAGE>
2007 GLOBAL NOTE
REPRESENTING ___% SUBORDINATED NOTES DUE 2007
Bank United Corp., a Delaware corporation, for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, the principal
sum of ___________, on _________ __, 2007.
Interest Payment Dates: [____] and [_____], commencing [____].
Record Dates: [____] and [_____].
Reference is hereby made to the further provisions of this 2007
Global Note 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 duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this 2007 Global Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purposes.
IN WITNESS WHEREOF, Bank United Corp. has caused this 2007 Global
Note to be duly executed under its corporate seal.
Dated:
BANK UNITED CORP.
By: ________________________
Name:
Title:
[Corporate Seal]
Attest:
____________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
______________________,
as Trustee, certifies that this 2007 Global Note is one of the Subordinated
Debt Securities referred to in the Indenture.
By: ________________________________
Authorized Signatory
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FORM OF REVERSE SIDE OF 2007 GLOBAL NOTE
BANK UNITED CORP.
2007 GLOBAL NOTE
REPRESENTING ___% SUBORDINATED NOTES DUE 2007
I. INDENTURE.
This 2007 Note is one of a duly authorized issue of debt
securities of the Company (as defined below) designated as its "__% Subordinated
Notes due 2007" (the "2007 Notes") limited in aggregate principal amount to
$120,000,000, issued under an indenture dated as of ____ __, 1997 (as further
amended or supplemented from time to time, the "Indenture") among the Company,
as issuer, and ______________, as trustee (the "Trustee," which term includes
any successor Trustee under the Indenture), to which Indenture reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and each Holder of
2007 Notes and of the terms upon which the 2007 Notes are, and are to be,
authenticated and delivered. The summary of the terms of this 2007 Global Note
contained herein does not purport to be complete and is qualified by reference
to the Indenture. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this 2007 Global Note and the terms of the
Indenture, the terms of the Indenture shall control. All capitalized terms used
in this 2007 Global Note which are not defined herein shall have the meanings
assigned to them in the Indenture.
II. PRINCIPAL AND INTEREST.
Bank United Corp., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called "the Company"), promises to pay the principal amount of this 2007
Global Note to the Holder hereof on _____ __, 2007.
The Company shall pay interest on this 2007 Global Note at a rate
of ___% PER ANNUM, from ________ __, 1997 or from the most recent Interest
Payment Date thereafter to which interest has been paid or duly provided for,
semiannually in arrears on _____ __ and ______ __ of each year, commencing on
___________, 1997, to the Holder hereof until the principal amount hereof is
paid or duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture, be paid to the Person in whose name this 2007 Global
Note (or the 2007 Note in exchange or substitution for which this 2007 Global
Note was issued) is registered at the close of business on the Record Date for
interest payable on such Interest Payment Date. The Record Date for any interest
payment is the close of business on _____ or _____, as the case may be, whether
or not a Business Day, immediately preceding the Interest Payment Date on which
such interest is payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") shall forthwith cease to be payable to the
Holder on such Record Date and shall be paid as provided in Section 310 of the
Indenture. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
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Each payment of interest in respect of an Interest Payment Date
will include interest accrued through the day before such Interest Payment Date.
If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
To the extent lawful, the Company shall pay interest on Defaulted
Interest (without regard to any applicable grace period) at the same rate. The
Company's obligation pursuant to the previous sentence shall apply whether such
overdue amount is due at its Stated Maturity or otherwise.
The 2007 Notes are not redeemable prior to maturity.
III. METHOD OF PAYMENT.
The Company, through the Paying Agent, shall pay interest on this
2007 Global Note to the registered Holder of this 2007 Global Note, as provided
above. The Holder must surrender this 2007 Global Note to a Paying Agent to
collect principal payments. The Company will pay principal, premium, if any, and
interest in money of the United States of America that at the time of payment is
legal tender for payment of all debts, public and private. Principal, premium,
if any, and interest shall be paid by check mailed to the registered Holders of
2007 Notes at their registered addresses; PROVIDED that all payments with
respect to 2007 Notes the Holders of which have given wire transfer instructions
to the Company will be required to be made by wire transfer of immediately
available funds to the accounts specified by the Holders thereof.
IV. REGISTRAR AND PAYING AGENT.
Initially, the Trustee will act as Registrar and Paying Agent
under the Indenture. The Company may, upon written notice to the Trustee,
appoint and change any Registrar or Paying Agent. If the Company or any of its
Affiliates acts as Paying Agent, the Company or such Affiliate shall segregate
the funds held by it as Paying Agent and hold them in trust for the benefit of
the Holders of 2007 Notes or the Trustee.
V. SUBORDINATION
The indebtedness evidenced by this 2007 Global Note is, to the
extent provided in Article Eleven of the Indenture, subordinate and subject in
right of payment to the prior payment in full of all Senior Indebtedness (as
defined in the Indenture), and this 2007 Global Note is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this 2007
Global Note, by accepting the same, agrees that each holder of Senior
Indebtedness, whether created or acquired before or after the issuance of the
2007 Notes, shall be deemed conclusively to have relied on such provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior
Indebtedness. The Indenture also provides that if, upon the occurrence of
certain events of bankruptcy or insolvency relating to the Company or
bankruptcy, insolvency,
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receivership or similar proceedings of Bank United, a federally chartered
savings bank and indirect subsidiary of the Company ("Bank"), there remains,
after giving effect to such subordination provisions, any amount of cash,
property or securities available for payment or distribution in respect of 2007
Notes (as defined in the Indenture, "Excess Proceeds"), and if, at such time,
any Entitled Person (as defined in the Indenture) has not received payment in
full of all amounts due or to become due on or in respect of Other Financial
Obligations (as defined in the Indenture), then such Excess Proceeds shall first
be applied to pay or provide for the payment in full of such Other Financial
Obligations before any payment or distribution may be made in respect of 2007
Notes. This 2007 Global Note is also issued subject to the provisions of the
Indenture regarding payments to Entitled Persons in respect of Other Financial
Obligations. Each Holder of this 2007 Global Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination of this 2007 Global Note and payment of Excess
Proceeds as provided in the Indenture and (c) appoints the Trustee as his
attorney-in-fact for any and all such purposes.
VI. NO MANDATORY REDEMPTION.
The 2007 Notes are not subject to any sinking fund or mandatory
redemption.
VII. THE 2007 GLOBAL NOTE.
So long as this 2007 Global Note is registered in the name of the
Depositary or its nominee, members of, or participants in, the Depositary
("Agent Members") shall have no rights under the Indenture with respect to this
2007 Global Note held on their behalf by the Depositary or the Trustee as its
custodian, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of this 2007 Global
Note for all purposes. Notwithstanding the foregoing, nothing herein shall (i)
prevent the Company, the Trustee or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or (ii) impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of 2007 Notes.
The Holder of this 2007 Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests in this 2007 Global Note through Agent Members, to take any
action which a Holder of 2007 Notes is entitled to take under the Indenture or
the 2007 Notes.
VIII. TRANSFER AND EXCHANGE.
The Holder of this 2007 Global Note shall, by acceptance of this
2007 Global Note, agree that transfers of beneficial interests in this 2007
Global Note may be effected only through a book entry system maintained by such
Holder (or its agent), and that ownership of a beneficial interest in the 2007
Notes represented thereby shall be required to be reflected in book entry form.
C-5
<PAGE>
Transfers of this 2007 Global Note shall be limited to transfers
in whole and not in part, to the Depositary, its successors, and their
respective nominees. Interests of beneficial owners in this 2007 Global Note
shall be transferred in accordance with the rules and procedures of the
Depositary (or its successors).
This 2007 Global Note shall be exchanged by the Company for one
or more 2007 Certificated Notes as specified in Section 308 of the Indenture if,
among other things, the Depositary (a) (i) has notified the Company that it is
unwilling or unable to continue as, or ceases to be, a clearing agency
registered under Section 17A of the Exchange Act and (ii) a successor to the
Depositary registered as a clearing agency under Section 17A of the Exchange Act
is not able to be appointed by the Company within 90 calendar days or (b) is at
any time unwilling or unable to continue as Depositary and a successor to the
Depositary is not able to be appointed by the Company within 90 calendar days.
If an Event of Default occurs and is continuing, the Company shall, at the
request of the Holder hereof, exchange all or part of this 2007 Global Note for
one or more 2007 Certificated Notes; PROVIDED that the principal amount of each
of such 2007 Certificated Notes, and this 2007 Global Note, after such exchange,
shall be $1,000 or an integral multiple thereof. Whenever this 2007 Global Note
is exchanged as a whole for one or more 2007 Certificated Notes, it shall be
surrendered by the Holder hereof to the Trustee for cancellation. Whenever this
2007 Global Note is exchanged in part for one or more 2007 Certificated Notes,
it shall be surrendered by the Holder hereof to the Trustee and the Trustee
shall make the appropriate notations hereon pursuant to Section 307(a) of the
Indenture. All 2007 Certificated Notes issued in exchange for this 2007 Global
Note or any portion hereof shall be registered in such names, and delivered, as
the Depositary shall instruct the Trustee. Interests in this 2007 Global Note
may not be exchanged for 2007 Certificated Notes other than as provided in this
paragraph.
IX. DENOMINATIONS.
The 2007 Notes are issuable only in registered form, without
coupons, in denominations of $1,000 and integral multiples thereof of principal
amount.
X. UNCLAIMED MONEY
If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee or Paying Agent shall pay
the money back to the Company at its request unless an abandoned property law
designates another Person. After any such payment, Holders of 2007 Notes
entitled to the money must look only to the Company and not to the Trustee for
payment unless such abandoned property law designates another Person.
XI. AMENDMENT, WAIVER.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the 2007 Notes may be amended with the written consent of the
Holders of not less than 66-2/3% in principal amount of the outstanding 2007
Notes affected by such amendment [(which consent may, but need not, be given in
connection with any tender offer or exchange offer for 2007 Notes)] and (ii) any
past default or Event of Default and its consequences may be waived with
C-6
<PAGE>
the written consent of the Holders of at least 66-2/3% in principal amount of
the outstanding 2007 Notes. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of 2007 Notes, the Company and the
Trustee may amend the Indenture or the 2007 Notes, among other things, (i) to
evidence the succession of another Person to the Company and the assumption by
such successor of the covenants of the Company under the Indenture and contained
in the 2007 Notes; (ii) to add to the covenants of the Company for the benefit
of the Holders of all or any of the 2007 Notes (and if such covenants are to be
for the benefit of less than all of the Notes, stating that such covenants are
expressly being included solely for the benefit of such Notes) or to surrender
any right or power herein conferred upon the Company; (iii) to add any
additional Events of Default; (iv) to provide for uncertificated 2007 Notes in
addition to or in place of certificated 2007 Notes; (v) to change or eliminate
any of the provisions of the Indenture, PROVIDED that any such change or
elimination shall become effective only when there is no 2007 Note outstanding
created prior to the execution of such amendment which is entitled to the
benefit of such provision; (vi) to secure the 2007 Notes; (vii) to evidence and
provide for the acceptance of appointment under the Indenture of a successor
Trustee with respect to the Notes and to add to or change any of the provisions
of the Indenture as are necessary to provide for or facilitate the
administration of the trusts under the Indenture by more than one Trustee;
(viii) to add to, change or eliminate any of the provisions of Article Twelve of
the Indenture in respect of the 2007 Notes, PROVIDED that any such addition,
change or elimination shall not adversely affect the interests of the Holders of
2007 Notes in any material respect; (ix) to cure any ambiguity in the Indenture
or to correct or supplement any provision in the Indenture which may be
inconsistent with any other provision therein or to add any other provision with
respect to matters or questions arising under the Indenture, PROVIDED that such
actions shall not adversely affect the interests of the Holders of 2007 Notes in
any material respect; or (x) to comply with the requirements of the Commission
in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act.
XII. DEFAULTS AND REMEDIES.
An Event of Default is any of certain events involving a
bankruptcy, insolvency or reorganization of the Company, or bankruptcy,
insolvency, receivership or similar proceedings of the Bank. If an Event of
Default occurs and is continuing, either the Trustee or the holders of at least
25% in aggregate principal amount of the 2007 Notes then outstanding may declare
the unpaid principal of (and premium, if any, on) all the 2007 Notes, plus
accrued and unpaid interest thereon, to be immediately due and payable. Holders
of 2007 Notes may not enforce the Indenture or the 2007 Notes except as provided
in the Indenture. The foregoing provision would be subject as to enforcement to
the broad equity powers of a federal bankruptcy court and to the determination
by that court of the nature of the rights of the Holders of the 2007 Notes. The
Company is required to furnish annually to the Trustee a statement as to the
performance by the Company of its obligations under the Indenture and as to any
default in such performance. Under certain circumstances, any declaration of
acceleration with respect to the 2007 Notes may be rescinded and past defaults
(except, unless theretofore cured, a default in the payment of principal of or
premium, if any, or interest on the 2007 Notes) may be waived by the holders of
a majority in aggregate principal amount of the 2007 Notes then outstanding.
C-7
<PAGE>
XIII. LIMITED RIGHT OF ACCELERATION.
The 2007 Notes may be accelerated only in the case of an Event of
Default as described above. The Indenture does not provide for any right of
acceleration of the payment of the principal of the 2007 Notes upon a default in
the payment of principal of or premium, if any, or interest on the 2007 Notes,
or a default in the performance of any covenant or agreement in the 2007 Notes
or in the Indenture. In the event of a default in the payment of principal,
premium, if any, or interest, the holder of a 2007 Note (or the Trustee on
behalf of the Holders of all of the 2007 Notes affected) may, subject to certain
limitations and conditions, seek to enforce payment of such principal, premium
or interest.
XIV. MAINTENANCE OF STATUS OF SUBSIDIARIES AS INSURED DEPOSITORY INSTITUTIONS.
The Company has agreed that it will do or cause to be done all
things necessary to preserve and keep in full force and effect the status of
each of its subsidiaries that is a depository institution (including the Bank)
as an insured depository institution and do or cause to be done all things
necessary to ensure that savings accounts of each such subsidiary are insured by
the FDIC or any successor organization up to the maximum amount permitted by 12
U.S.C. Section 1811 ET SEQ. and the regulations thereunder or any succeeding
federal law, except as to individual accounts or interests in employee benefit
plans that are not entitled to "pass-through" insurance under 12 U.S.C. Section
1821(a)(1)(D).
XV. INDIVIDUAL RIGHTS OF TRUSTEE.
Subject to certain limitations imposed by the Trust Indenture
Act, the Trustee or any Authenticating Agent, Paying Agent or Registrar, in its
individual or any other capacity, may become the owner or pledgee of the 2007
Notes and may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent or Registrar, as the
case may be, under the Indenture.
XVI. NO RECOURSE AGAINST CERTAIN OTHERS.
No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the 2007 Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation, solely by
reason of its status as a director, officer, employee, incorporator or
stockholder of the Company. By accepting a 2007 Note, each Holder waives and
releases all such liability (but only such liability) as part of the
consideration for issuance of such 2007 Note to such Holder.
XVII. AUTHENTICATION.
This 2007 Global Note shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this 2007 Global Note.
C-8
<PAGE>
XVIII. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of
2007 Notes or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with rights of survivorship
and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift
to Minors Act).
XIX. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Company has caused CUSIP numbers to
be printed on the 2007 Notes and has directed the Trustee to use CUSIP numbers
in notices to Holders of 2007 Notes as a convenience to such Holders. No
representation is made as to the correctness or accuracy of such numbers either
as printed in the notice or on the 2007 Notes and reliance may be placed only on
the other identification numbers printed on the 2007 Notes.
XX. GOVERNING LAW.
THE INDENTURE AND THIS 2007 GLOBAL NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder of 2007 Notes upon written
request and without charge to the Holder a copy of the Indenture which has in it
the text of this 2007 Global Note. Requests may be made to:
BANK UNITED CORP.
--------------------
--------------------
--------------------
Att.: Secretary
C-9
<PAGE>
ASSIGNMENT
(To be executed by the registered Holder if such
Holder desires to transfer this 2007 Global Note)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
- ----------------------------------
| |
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address of transferee)
- --------------------------------------------------------------------------------
this 2007 Global Note, together with all right, title and interest herein, and
does hereby irrevocably constitute and appoint ________________________________
Attorney to transfer this 2007 Global Note on the Security Register, with full
power of substitution.
Dated: _______________
- ----------------------------- --------------------------------
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this 2007 Global Note in every particular, without
alteration or any change whatsoever.
C-10
<PAGE>
EXHIBIT D
[FORM OF 2007 NOTE CERTIFICATED NOTE]
To be in the form of the 2007 Global Note with appropriate changes.
EXHIBIT 4.8
THIS SECOND SUPPLEMENTAL INDENTURE dated as of December 3, 1996, among
BANK UNITED CORP., formerly named USAT Holdings Inc., a Delaware corporation
(the "Company"), BNKU HOLDINGS, INC., a Delaware corporation ("BNKU Holdings")
and THE BANK OF NEW YORK, a banking corporation duly organized and existing
under the laws of the State of New York, as trustee under the Indenture referred
to below (the Trustee").
WITNESSETH
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as
of May 15, 1993, and a First Supplemental Indenture dated as of January 23, 1995
(collectively, the "Indenture"), relating to the Company's 8.05% Senior Notes
due May 15, 1998 (the "Securities");
WHEREAS, substantially all of the Company's consolidated properties and
assets consist of Two Million Eight Hundred Seventeen Thousand Seven Hundred
Sixty Eight (2,817,768) shares (the "Shares") of common stock, $0.01 par value,
of Bank United, a federally chartered savings bank, representing all of the
outstanding common stock of Bank United;
WHEREAS, BNKU Holdings, a Wholly Owned Subsidiary of the Company, was
formed for the sole purpose of holding the Shares;
WHEREAS, the Company intends to enter into a Stock Transfer Agreement with
BNKU Holdings, under which it will transfer the Shares to BNKU Holdings;
WHEREAS, Section 801 of the Indenture requires that in connection with the
transfer of the Shares BNKU Holdings shall assume by an indenture supplemental
to the Indenture the due and punctual payment of the principal (and premium, if
any) and interest on the Securities and the performance of every covenant of the
Indenture on the part of the Company to be performed or observed; and
WHEREAS, the consent of the Holders of the Outstanding Securities is not
required to enter into this Second Supplemental Indenture;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the Company, BNKU Holdings and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective Holders from
time to time of the Securities as follows:
Section 1. SUBSTITUTION AND ASSUMPTION OF OBLIGATIONS. In accordance with
Section 801 of the Indenture, BNKU Holdings hereby assumes the due and punctual
payment of the principal (and premium, if any) and interest on the Securities
and the performance of every covenant of the Indenture on the part of the
Company to be performed or observed.
<PAGE>
Section 2. COMPANY TO REMAIN OBLIGATED. Notwithstanding Section 802 of the
Indenture, which provides that the Company shall be relieved of all obligations
and covenants under the Indenture and the Securities upon a transfer of all or
substantially all of its properties and assets as an entirety, the Company shall
take no action with respect to the shares of capital stock of BNKU Holdings that
it would not have been permitted to take with respect to the Shares prior to the
date hereof,
Section 3. MISCELLANEOUS. The Trustee accepts the trusts hereunder and
agrees to perform the same, but only upon the terms and conditions set forth in
the Indenture and in this Second Supplemental Indenture, to all of which the
Company agrees. The provisions of this Second Supplemental Indenture shall
become effective
Section 4. GOVERNING LAW. This Second Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York
BANK UNITED CORP.
(CORPORATE SEAL)
By: /s/ Barry C. Burkholder
Name: Barry C. Burkholder
Title: President
Attest:
By: /s/ Randolph C. Henson
Name: Randolph C. Henson
Title: Corporate Secretary
-2-
<PAGE>
BNKU HOLDINGS, INC.
(CORPORATE SEAL)
By: /s/ Jonathon K. Heffron
Name: Jonathon K. Heffron
Title: Vice President
Attest:
By: /s/ Randolph C. Henson
Name: Randolph C. Henson
Title: Corporate Secretary
THE BANK OF NEW YORK
(CORPORATE SEAL)
By: /s/ Remo J. Reale
Name: Remo J. Reale
Title: Assistant Vice President
Attest:
By: /s/ Mary La Gumina
Name: Mary La Gumina
Title: Assistant Vice President
-3-
<PAGE>
ACKNOWLEDGMENTS
STATE OF TEXAS
COUNTY OF HARRIS
On the 3rd day of December, 1996, before me personally came Barry C.
Burkholder, to me known, who, being by me duly sworn, did depose and say that he
is President of BANK UNITED CORP., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
Kathlynn L. Cantu /s/ Kathlynn L. Cantu
Notary Public, State of Texas
My Commission Expires
December 4, 1997
ACKNOWLEDGMENTS
STATE OF TEXAS
COUNTY OF HARRIS
On the 3rd day of December, 1996, before me personally came Jonathon
K. Heffron, to me known, who, being by me duly sworn, did depose and say that he
is Vice President of BNKU HOLDINGS, INC., one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
Kathlynn L. Cantu /s/ Kathlynn L. Cantu
Notary Public, State of Texas
My Commission Expires
December 4, 1997
-4-
<PAGE>
ACKNOWLEDGMENTS
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 3rd day of December, 1996, before me personally came Remo J.
Reale, to me known, who, being by me duly sworn, did depose and say that he is
Assistant Vice President of THE BANK OF NEW YORK, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ William J. Cassels
William J. Cassels
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York County
Commission Expires May 16, 1998
-5-
EXHIBIT 4.9
BANK UNITED CORP.
(formerly USAT Holdings, Inc.)
to
THE BANK OF NEW YORK
Trustee
--------------------
Third Supplemental Indenture
Dated as of March 27, 1997
Amending and Restating Indenture
Dated as of May 15, 1993,
as Amended and Supplemented
-------------------
$115,000,000
8.05% Senior Notes due May 15, 1998
<PAGE>
BANK UNITED CORP.
(formerly USAT Holdings, Inc.)
Reconciliation and tie between Trust Indenture Act of 1939 and
Amended and Restated Indenture, dated as of March 27, 1997
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- ---------------- ---------
ss.310(a)(1).................................................................609
(a)....................................................................609
(a)(3)......................................................Not Applicable
(a)(4)......................................................Not Applicable
(b)....................................................................608
610
ss.3.11(a)................................................................613(a)
(b).................................................................613(b)
(b)(2)...........................................................703(a)(2)
703(b)
ss. 312 (a)..................................................................701
702(a)
(b).................................................................702(b)
(c).................................................................702(c)
ss. 313(a)................................................................703(a)
(b).................................................................703(b)
(c).................................................................703(a)
703(b)
(d).................................................................703(c)
ss. 314(a) ..................................................................704
(b) ........................................................Not Applicable
(c)(1) ................................................................102
(c)(2) ................................................................102
(c)(3) .....................................................Not Applicable
(d) ........................................................Not Applicable
(e) ...................................................................102
ss. 315(a) ...............................................................601(a)
(b) ...................................................................602
703 (a)(6)
(c) ................................................................601(b)
(d) ................................................................601(c)
(d)(1) ..........................................................601(a)(1)
(d)(2) ..........................................................601(c)(2)
(d)(3) ..........................................................601(c)(3)
-ii-
<PAGE>
(e) ...................................................................514
ss. 316(a) ..................................................................101
(a)(1)(A) .............................................................502
512
(a)(1)(B) .............................................................513
(a)(2) .....................................................Not Applicable
(b) ...................................................................508
ss. 317(a)(1) ...............................................................503
(a)(2) ................................................................504
(b) ................................................................. 1003
ss. 318(a) ..................................................................107
- -------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
-iii-
<PAGE>
TABLE OF CONTENTS
PAGE
----
Parties......................................................................1
Recitals of the Company......................................................1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions....................................................2
Act ...........................................................3
Additional Interest..............................................3
Affiliate........................................................3
BNKU Holdings....................................................3
Board of Directors...............................................3
Board Resolution.................................................3
Business Day.....................................................3
Capital Stock....................................................3
Commission.......................................................3
Company..........................................................3
Company Request" or "Company Order...............................4
Consent Solicitation Statement...................................4
Corporate Trust Office...........................................4
corporation......................................................4
Debt ...........................................................4
Depositary.......................................................4
Event of Default.................................................4
Exchange Act.....................................................4
Exchange and Registration Rights.................................5
Exchange Offer...................................................5
Exchange Security................................................5
Global Security..................................................5
Guarantee........................................................5
Holder...........................................................5
Incur ...........................................................5
Indenture........................................................5
Interest Payment Date............................................6
Maturity.........................................................6
Offer ...........................................................6
Officers' Certificate............................................6
-iv-
<PAGE>
Opinion of Counsel...............................................6
Outstanding......................................................6
Paying Agent.....................................................7
Person...........................................................7
Predecessor Security.............................................7
Proposed Amendments..............................................7
Redeemable Stock.................................................7
Regular Record Date..............................................7
Responsible Officer..............................................7
Rule 144A Securities.............................................8
Second Step-Up...................................................8
Second Supplemental Indenture....................................8
Securities.......................................................8
Securities Act...................................................8
Security Register" and "Security Registrar.......................8
Special Record Date..............................................8
Stated Maturity..................................................8
Step-Down Date...................................................8
Step-Up..........................................................8
Subsidiary.......................................................8
Trustee..........................................................8
Trust Indenture Act..............................................9
U.S. Government Obligations......................................9
Vice President...................................................9
Voting Stock.....................................................9
SECTION 102. Compliance Certificates and Opinions...........................9
SECTION 103. Form of Documents Delivered to Trustee........................10
SECTION 104. Acts of Holders: Record Date..................................10
SECTION 105. Notices. Etc., to Trustee and Company.........................11
SECTION 106. Notice to Holders: Waiver.....................................12
SECTION 107. Application of Trust Indenture Act............................12
SECTION 108. Effect of Headings and Table of Contents......................12
SECTION 109. Successors and Assigns........................................13
SECTION 110. Separability Clause...........................................13
-v-
<PAGE>
SECTION 111. Benefits of Indenture.........................................13
SECTION 112. Governing Law.................................................13
SECTION 113. Legal Holidays................................................13
SECTION 114. No Recourse Against Others....................................13
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally...............................................14
SECTION 202. Form of Face of Security......................................14
SECTION 203. Form of Reverse of Security...................................17
SECTION 204. Form of Trustee's Certificate of Authentication...............19
ARTICLE THREE
The Securities
SECTION 301. Title and Terms...............................................20
SECTION 302. Denominations.................................................21
SECTION 303. Execution, Authentication, Delivery and Dating................21
SECTION 304. Temporary Securities..........................................22
SECTION 305. Registration, Registration of Transfer and Exchange...........23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..............26
SECTION 307. Payment of Interest; Interest Rights Preserved................26
SECTION 308. Persons Deemed Owners.........................................28
SECTION 309. Cancellation..................................................28
-vi-
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SECTION 310. Computation of Interest.......................................28
SECTION 311. CUSIP Numbers.................................................28
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.......................29
SECTION 402. Application of Trust Money....................................30
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.............................................30
SECTION 502. Acceleration of Maturity: Rescission and Annulment............32
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee33
SECTION 504. Trustee May File Proofs of Claim..............................33
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...34
SECTION 506. Application of Money Collected................................34
SECTION 507. Limitation on Suits...........................................35
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..........................................35
SECTION 509. Restoration of Rights and Remedies............................35
SECTION 510. Rights and Remedies Cumulative................................36
SECTION 511. Delay or Omission Not Waiver..................................36
SECTION 512. Control by Holders............................................36
SECTION 513. Waiver of Past Defaults.......................................36
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<PAGE>
SECTION 514. Undertaking for Costs.........................................37
SECTION 515. Waiver of Stay or Extension Laws..............................37
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities...........................37
SECTION 602. Notice of Defaults............................................38
SECTION 603. Certain Rights of Trustee.....................................39
SECTION 604. Not Responsible for Recitals or Issuance of Securities........40
SECTION 605. May Hold Securities...........................................40
SECTION 606. Money Held in Trust...........................................40
SECTION 607. Compensation and Reimbursement................................40
SECTION 608. Disqualification; Conflicting Interests.......................41
SECTION 609. Corporate Trustee Required: Eligibility.......................41
SECTION 610. Resignation and Removal: Appointment of Successor............41
SECTION 611. Acceptance of Appointment by Successor........................43
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...43
SECTION 613. Preferential Collection of Claims Against Company.............43
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.....44
SECTION 702. Preservation of Information; Communications to Holders........44
SECTION 703. Reports by Trustee............................................44
-viii-
<PAGE>
SECTION 704. Reports by Company............................................45
SECTION 705. Officers' Certificate with Respect to Change in
Interest Rates .............................................45
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms...........45
SECTION 802. Successor Substituted.........................................46
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders............47
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............49
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest...................49
SECTION 1002. Maintenance of Office or Agency..............................49
SECTION 1003. Money for Security Payments to be Held in Trust..............50
SECTION 1004. Existence....................................................51
SECTION 1005. Maintenance of Properties....................................51
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SECTION 1006. Payment of Taxes and Other Claims............................51
SECTION 1007. Maintenance of Insurance.....................................52
SECTIONS 1008 THROUGH 1016. [Reserved]......................................52
SECTION 1017. Provision of Financial Information...........................52
SECTION 1018. Statement by Officers as to Default: Compliance Certificates.52
SECTION 1019. Waiver of Certain Covenants..................................53
SECTION 1020. Exchange and Registration Rights.............................53
ARTICLE ELEVEN
Defeasance and Covenant Defeasance
SECTION 1101. Company's Option To Effect Defeasance or Covenant Defeasance.53
SECTION 1102. Defeasance and Discharge.....................................54
SECTION 1103. Covenant Defeasance..........................................54
SECTION 1104. Conditions to Defeasance or Covenant Defeasance..............55
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SECTION 1105. Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions.......57
SECTION 1106. Reinstatement................................................57
ARTICLE TWELVE
Substitution and Assumption of Obligations by
BNKU Holdings..............................58
ARTICLE THIRTEEN
Effectiveness of Third Supplemental Indenture..............58
TESTIMONIUM.................................................................59
SIGNATURES AND SEALS........................................................59
ACKNOWLEDGMENTS.............................................................60
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THIRD SUPPLEMENTAL INDENTURE, dated as of March 27, 1997, between Bank
United Corp., formerly named USAT Holdings Inc., a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Company"), having its principal office at 3200 Southwest Freeway, Suite 1600,
Houston, Texas 77027, and The Bank of New York, a banking corporation duly
organized and existing under the laws of the State of New York, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company, BNKU Holdings, Inc., a Delaware corporation (herein
called "BNKU Holdings"), and the Trustee are parties to an Indenture, dated as
of May 15, 1993, as supplemented by a First Supplemental Indenture dated as of
January 23, 1995 and a Second Supplemental Indenture (the "Second Supplemental
Indenture") dated as of December 3, 1996 (collectively, the "Indenture"); and
WHEREAS, the Company has duly authorized the creation of an issue of
$115,000,000 aggregate principal amount of its 8.05% Senior Notes due May 15,
1998 (the "Securities") of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly executed and delivered the
Indenture; and
WHEREAS, the Securities may consist of either or both Rule 144A Securities
or Exchange Securities, each as defined herein; and
WHEREAS, Section 902 of the Indenture permits the Company (when authorized
by a Board Resolution) and the Trustee, with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Securities, by Act
of said Holders delivered to the Company and the Trustee, to enter into
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or modifying
in any manner the rights of the Holders under the Indenture; and
WHEREAS, pursuant to the Offer to Purchase and Consent Solicitation
Statement of the Company dated March 12, 1997 (including any amendments thereto)
(the "Consent Solicitation Statement") and the related Letter of Transmittal and
Consent (including any amendments thereto and, together with the Consent
Solicitation Statement, the "Offer") the Company has (a) offered to purchase for
cash all of the Outstanding Securities and, in connection therewith (b)
solicited the consent of the Holders to certain amendments to the Indenture
described in the Consent Solicitation Statement and which have been reflected
herein (the "Proposed Amendments"); and
WHEREAS, the Offer provides that the Proposed Amendments will take the
form of an Amended and Restated Indenture; and
WHEREAS, the Company has received and delivered to the Trustee, in the
manner contemplated by the Indenture, the Act of the Holders of not less than a
majority of the Outstanding Securities, consenting to the Proposed Amendments to
be effected in the form of this Third Supplemental Indenture; and
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WHEREAS, this Third Supplemental Indenture, when it becomes effective as
provided in Article Thirteen hereof, will amend and restate the Indenture in its
entirety;
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the payments by the Company
to the Holders pursuant to the Offer, the Company, BNKU Holdings and the Trustee
mutually covenant and agree, for the equal and proportionate benefit of all
Holders of the Securities, 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
(whether or not such is indicated herein), 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 as consistently applied by the
Company at the date of such computation;
(4) unless otherwise specifically set forth herein, all calculations or
determinations of a Person shall be performed or made on a consolidated basis in
accordance with generally accepted accounting principles; and
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(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.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" has the meaning set forth in the form of
Security contained in Section 202. Unless the context otherwise requires,
references herein to "interest" on the Securities shall include Additional
Interest.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any 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.
"BNKU Holdings" has the meaning specified in the Recitals of the
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" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York,
New York are authorized or obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Commission" means the Securities and Exchange Commission, as 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.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"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
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consent Solicitation Statement" has the meaning specified in the
Recitals of the Company.
"Corporate Trust Office" means the principal office of the Trustee
in the City of New York, New York at which at any particular time its corporate
trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company, partnership or business trust.
"Debt" means, with respect to any Person, whether recourse is to all
or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) the maximum fixed redemption or repurchase price of Redeemable
Stock of such Person at the time of determination, and (vi) every obligation of
the type referred to in Clauses (i) through (v) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has Guaranteed or is responsible or liable, directly or indirectly, as obligor,
Guarantor or otherwise.
"Depositary" means the Person designated to act as Depositary by the
Company in Section 301 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
Depositary shall mean or include each Person who is then a Depositary hereunder.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934, as it
may be amended and any successor act thereto.
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"Exchange and Registration Rights" means the exchange and
registration rights set forth in Annex II hereto.
"Exchange Offer" has the meaning set forth in the form of the
Security contained in Section 202.
"Exchange Security" means any Security issued in exchange for a Rule
144A Security or Securities pursuant to an Exchange Offer or otherwise in a
transaction registered under the Securities Act and any Security with respect to
which the next preceding Predecessor Security of such Security was an Exchange
Security.
"Global Security" means a Security that evidences all or part of the
Securities issued to the Depositary in accordance with Section 303 and bearing
the legend prescribed in Section 303.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such Debt, (ii) to purchase property, securities or services for the purpose
of assuring the holder of such Debt of the payment of such Debt, or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); PROVIDED, HOWEVER, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring"
shall have meanings correlative to the foregoing); PROVIDED, HOWEVER, that a
change in generally accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"Indenture" means this instrument as originally executed or 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
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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.
"Interest Payment Date" means the Stated Maturity of an instalment
of interest on the Securities.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Offer" has the meaning specified in the Recitals of the Company.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) 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; and
(iii) Securities which have been defeased pursuant to Section 1202
hereof; and
(iv) 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 any request, demand,
authorization, direction, notice, consent or
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waiver hereunder, 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 or waiver, 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 (and premium, if any) 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.
"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.
"Proposed Amendments" has the meaning specified in the Recitals of
the Company.
"Redeemable Stock" of any Person means any equity security of such
Person that by its terms or otherwise is required to be redeemed prior to the
final Stated Maturity of the Securities or is redeemable at the option of the
holder thereof at any time prior to the final Stated Maturity of the Securities.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the May 1 or November 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"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.
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"Rule 144A Securities" means Securities that are not Exchange
Securities.
"Second Step-Up" has the meaning set forth in the form of Security
contained in Section 202.
"Second Supplemental Indenture" has the meaning specified in the
Recitals of the Company.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Rule 144A Securities and any Exchange
Securities authenticated and delivered under this Indenture.
"Securities Act" refers to the Securities Act of 1933, as it may be
amended and any successor act thereto.
"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 interest thereon, means the date specified in such Security as the
fixed date on which the principal of such Security or such instalment of
interest is due and payable.
"Step-Down Date" has the meaning set forth in the form of the
Security contained in Section 202.
"Step-Up" has the meaning set forth in the form of the Security
contained in Section 202.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"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 such successor Trustee.
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"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.
"U.S. Government Obligations" has the meaning specified in Section
1104.
"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" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
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 requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture 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 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.
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SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon 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 DATE.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by 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.
Without limiting the generality of the foregoing, a Holder,
including the Depositary that is a Holder of a Global Security, may make, give
or take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders, and the
Depositary
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that is a Holder of a Global Security may provide its proxy or proxies to the
beneficial owners of interest in any such Global Security.
(b) 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.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any future day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders. If not set
by the Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) 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.
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: Corporate
Trust Administration, or
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(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, Attention: General Counsel, or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS: WAIVER.
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. APPLICATION OF TRUST INDENTURE ACT.
The Trust Indenture Act shall apply as a matter of contract to this
Indenture for purposes of interpretation, construction and defining the rights
and obligations hereunder. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be 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 that 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.
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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, any Paying Agent, the Security Registrar and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Securities) payment of interest or principal (and
premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or at the Stated Maturity, PROVIDED that no interest shall
accrue for the period from and after such Interest Payment Date or Stated
Maturity, as the case may be.
SECTION 114. NO RECOURSE AGAINST OTHERS.
This Indenture and the Securities are solely corporate obligations of the
Company. No recourse shall be had against, and no personal liability shall
attach to, any director, officer, employee, incorporator, stockholder or
Affiliate, past, present or future, of the Company or any successor thereto, or
any of them, because of the creation of the indebtedness hereby authorized, or
under, upon or by reason of any obligation, covenant or agreement contained in
this Indenture or in any of the Securities or implied therefrom or any claim
based thereon or in respect thereof; it being expressly understood that all such
recourse and personal liability are hereby expressly waived and
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released as a condition of, and as consideration for, the execution of this
Indenture and the issuance of such Securities.
ARTICLE TWO
Security Forms
SECTION 201. FORMS GENERALLY.
The Rule 144A Securities, the Exchange Securities and the Trustee's
certificates of authentication shall be in substantially the forms set forth in
this Article, 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 as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
[If a Global Security to be held by The Depository Trust Company, then
insert -- Unless this Certificate is presented by an authorized representative
of the Depository Trust Company, a New York Corporation ("DTC"), to the issuer
or its agent for registration or transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co. has an interest herein.
[If a Global Security, then insert - THIS IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
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[If Rule 144A Securities, then insert-- THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND (EXCEPT
IN THE EVENT OF REPURCHASE BY THE COMPANY) MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A
UNDER THE SECURITIES ACT, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (4) TO AN ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE.]
BANK UNITED CORP.
8.05% SENIOR NOTES DUE MAY 15, 1998
NO.____________ $__________
Bank United Corp., a corporation duly organized and existing under the
laws of Delaware (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 May
15, 1998, and to pay interest thereon from May 17, 1993 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on May 15 and November 15 in each year, commencing November 15,
1993, at the rate of 8.05% per annum, until the principal hereof is paid or made
available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of 9.05% per annum on any overdue
principal and premium and on any overdue installment of interest until paid [If
Rule 144A Securities, then insert - -- ; PROVIDED, HOWEVER, (A) if a
registration statement under the Securities Act of 1933, as amended, with the
Securities and Exchange Commission (the "Commission") registering a security
substantially identical to this Security pursuant to an exchange offer (the
"Exchange Offer") upon the terms and conditions set forth in the Exchange and
Registration Rights (as defined in the Indenture) (or, in accordance with such
terms and conditions, registering this Security for resale on a continuous
basis, in lieu of registering such securities pursuant to an exchange offer (the
"Resale Registration")) shall not have been filed with the Commission by June
16, 1993, or (B) if the Exchange Offer has not been commenced by September 14,
1993 or consummated by (or, in lieu thereof, such Resale Registration shall not
have become effective by) October 14, 1993, then in the case of Clause (A) and
Clause (B) the aforesaid rate
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of 8.05% per annum shall increase (the "Step-Up") in an amount equal to 50 basis
points (1/2 of 1%) per annum so that interest on this Security shall accrue at
the rate of 8.55% per annum and PROVIDED, FURTHER, if the Exchange Offer has not
been consummated (or such Resale Registration has not become effective) by
February 11, 1994, then the aforesaid rate of 8.55% per annum shall increase
(the "Second Step-Up") by an additional amount equal to 50 basis points (1/2 of
1%) per annum so that interest on this Security shall accrue at the rate of
9.05% per annum. Interest accruing as a result of the Step-Up or the Second
Step-Up is referred to herein as "Additional Interest." Additional Interest in
respect of the Step-Up will accrue from and including June 16, 1993, in the case
of Clause (A) above or September 14, 1993 (in the case of failure to commence
the Exchange Offer) or October 14, 1993 (in the case of failure to consummate
the Exchange Offer or be effective as to such Resale Registration), in the case
of Clause (B) above, and Additional Interest in respect of the Second Step-Up
will accrue from and including February 11, 1994, until in the case of Clause
(A) above, the date on which such registration statement is filed, or otherwise
until the Exchange Offer is so consummated (or, in lieu thereof, the
effectiveness of such Resale Registration) (any such date, the "Step-Down
Date"). Additional Interest shall no longer accrue and interest shall accrue on
this Security at the aforesaid rate of 8.05% per annum from and including the
Step-Down Date. Accrued Additional Interest shall be paid semi-annually on the
Interest Payment Dates; and the amount of accrued Additional Interest shall be
determined on the basis of the number of days actually elapsed. Any accrued and
unpaid interest (including Additional Interest) on this Security upon the
issuance of an Exchange Security in exchange for this Security shall cease to be
payable to the Holder hereof but such accrued and unpaid interest (including
Additional Interest) shall be payable on the next Interest Payment Date for such
Exchange Security to the Holder thereof on the related Regular Record Date.] 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 May 1 or November 1 (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
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 may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; PROVIDED, HOWEVER, that at the
option of the Company 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.
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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.
BANK UNITED CORP.
[Seal]
By:
Title:
Attest:
Title:
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 8.05% Senior Notes due May 15, 1998 (the "Securities")
issued under an Indenture, dated as of May 15, 1993, as supplemented by a First
Supplemental Indenture dated as of January 23, 1995 and a Second Supplemental
Indenture dated as of December 3, 1996, and as supplemented and amended and
restated by a Third Supplemental Indenture dated as of March 27, 1997 (herein
called the "Indenture"), between the Company, BNKU Holdings, Inc. and The Bank
of New York, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture). The Securities are limited in aggregate
principal amount to $115,000,000. 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.
The Securities are not redeemable prior to their Stated Maturity.
The Securities do not have the benefit of any sinking fund obligations.
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<PAGE>
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein.
If an Event of Default shall occur and be continuing, the principal of all
the Securities 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 under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in aggregate principal amount of
the Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, 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.
Unless the context otherwise requires, the Securities (including all Rule
144A Securities (as defined in the Indenture) and Exchange Securities (as
defined in the Indenture)) shall constitute one series for all purposes under
the Indenture, including without limitation, amendments and waivers.
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 premium, if any) 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 the Borough of Manhattan, The City of New
York, 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 authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Exchange Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof and the
Rule 144A Securities are issuable only in registered form in denominations of
$250,000 and any integral multiple of $1,000 in excess thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
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<PAGE>
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.
The Indenture provides that no Holder of any Securities thereunder may
enforce any remedy or institute any proceeding under the Indenture except to the
extent and on the conditions specified therein.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months PROVIDED, that Additional Interest shall be computed on
the basis of a 365-day year and the number of days actually elapsed.
The due and punctual payment of the principal (and premium, if any) and
interest on the Securities and the performance of every covenant of the
Indenture on the part of the Company to be performed or observed have been
assumed by BNKU Holdings, Inc., as provided in Article Twelve of the Indenture.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
The Bank of New York
as Trustee
By __________________________________
Authorized Signatory
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ARTICLE THREE
The Securities
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $115,000,000, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 304, 305, 306,
or 906. The Company may issue Exchange Securities from time to time pursuant to
an Exchange Offer pursuant to a Board Resolution, subject to Section 303,
included in an Officers' Certificate delivered to the Trustee, in authorized
denominations in exchange for a like principal amount of Rule 144A Securities.
Upon any such exchange the Rule 144A Securities shall be cancelled in accordance
with Section 309 and shall no longer be deemed Outstanding for any purpose. In
no event shall the aggregate principal amount of Rule 144A Securities and
Exchange Securities Outstanding exceed $115,000,000.
The Securities shall be known and designated as the "8.05% Senior Notes
due May 15, 1998" of the Company. The Stated Maturity of the Securities shall be
May 15, 1998. The Securities shall bear interest at the rate of 8.05% per annum
(subject, in the case of the Rule 144A Securities, to increase by .50% or 1.00%
per annum, as provided in such Security), from May 17, 1993 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, as the case may be, payable semi-annually on May 15 and November 15,
commencing November 15, 1993, until the principal thereof is paid or made
available for payment.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company in the City of New York,
New York maintained for such purpose and at any other office or agency
maintained by the Company for such purpose; 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.
The Depositary for the Rule 144A Securities to be authenticated and
delivered in the form of a Global Security or Securities upon original issuance
shall be The Depository Trust Company.
The Securities shall be subject to defeasance at the option of the Company
as provided in Article Eleven.
Unless the context otherwise requires, the Rule 144A Securities and the
Exchange Securities shall constitute one series for all purposes under the
Indenture, including without limitation, amendments and waivers.
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SECTION 302. DENOMINATIONS.
The Rule 144A Securities shall be issuable only in registered form without
coupons and only in denominations of $250,000 and any integral multiple of
$1,000 above that amount and the Exchange Securities shall be issuable only in
registered form without coupons and only 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 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 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 such Company
Order shall authenticate and deliver such Securities.
At any time and from time to time after the execution and delivery of this
Indenture and after the effectiveness of a Registration Statement under the
Securities Act of 1933 with respect thereto, the Company may deliver Exchange
Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Exchange
Securities and a like principal amount of Rule 144A Securities for cancellation
in accordance with Section 309 of this Indenture, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities.
In authenticating Securities in accordance with any Company Order as
provided in the preceding two paragraphs, 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,
(a) that such Securities when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to the 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,
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moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(b) if applicable, that the issuance of the Exchange Securities in
exchange for the Rule 144A Securities has been effected in compliance with the
Securities Act of 1933, as amended.
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.
The Company shall execute and the Trustee shall authenticate one or more
Global Securities that (i) shall represent an aggregate amount equal to the
aggregate principal amount of such of the Outstanding Securities as the Company
shall have directed the Trustee to authenticate in the form of a Global Security
or Global Securities, (ii) shall be registered in the name of the Depositary or
the nominee of the Depositary, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect (or in the form required by the
Depositary): "THIS IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY."
The Depositary must, at all times while it serves as such Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, 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.
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If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
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 designated pursuant to Section 1002 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. Such Security Register shall
distinguish between Rule 144A Securities and Exchange Securities.
Upon surrender for registration of transfer of any Security at an office
or agency of the Company designated pursuant to Section 1002 for such purpose,
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 any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like 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.
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 (subject to the provisions in the Rule 144A Securities regarding the
payment of Additional Interest) 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. As a condition to the
registration of transfer of any Rule 144A Securities, the Company or the Trustee
may require evidence reasonably satisfactory to them as to the compliance with
the restrictions set forth in the legend below.
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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 or 906 not involving any transfer.
All Rule 144A Securities issued hereunder shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT") AND (EXCEPT IN THE EVENT OF REPURCHASE BY THE COMPANY)
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (2) IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (4) TO AN
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO ABOVE.
All Rule 144A Securities issued upon transfer or exchange or replacement
thereof shall bear such legend unless the Company shall have delivered to the
Trustee (and the Securities Registrar, if other than the Trustee) a Company
Order which states that the Security may be issued without such legend thereon.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for the individual Securities represented
thereby, a Global Security representing all or a portion of the Securities may
not be transferred except as a whole by the Depositary to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
If at any time the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary or if at any time the Depositary shall no
longer be eligible under Section 303, the Company shall appoint a successor
Depositary. If a successor Depositary is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Securities, will
authenticate and deliver, individual
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Securities in an aggregate principal amount equal to the principal amount of the
Global Security or Global Securities representing Securities in exchange for
such Global Security or Global Securities.
The Company may at any time and in its sole discretion determine that
individual Securities issued in the form of one or more Global Securities shall
in whole or in part no longer be represented by such Global Security or Global
Securities. In such event, or if an Event of Default has occurred and is
continuing, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Securities, will
authenticate and deliver, individual Securities in an aggregate principal amount
equal to the principal amount of the Global Security or Global Securities to be
exchanged therefor.
The Depositary may surrender a Global Security in exchange in whole or in
part for individual Securities on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new individual
Security or Securities of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
individual Securities delivered to Holders thereof.
Upon the exchange of a Global Security for individual Securities, such
Global Security shall be cancelled by the Trustee. Individual Securities issued
in exchange for a Global Security pursuant to this Section shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee and the
Company shall not have any liability for the accuracy of the instructions
received from the Depositary. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
Neither the Company nor the Trustee shall have any responsibility or
obligation to any participant in the Depositary, any Person claiming a
beneficial ownership interest in the Securities under or through the Depositary
or any such participant, or any other Person which is not shown on the Security
Register as being a Holder, with respect to (1) the Securities; (2) the accuracy
of any records maintained by the Depositary or any such participant; (3) the
payment by the Depositary or any such participant of any amount in respect of
the principal of or premium or interest on the Securities; (4) any notice which
is permitted or required to be given to Holders of Securities under this
Indenture; (5) the selection by the Depositary or any such participant of any
Person to receive
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payment in the event of a partial redemption of the Securities; or (6) any
consent given or other action taken by the Depositary as Holder of Securities.
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 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 upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security 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 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 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.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
The Company hereby appoints the Trustee as Paying Agent and the Trustee
hereby accepts such appointment.
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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 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 (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 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 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 mailed, first-class postage prepaid, to each Holder at his address as
it appears in the Security Register, 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 (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 in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the 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.
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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.
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 premium, if any) and
(subject to Section 307) 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, registration of transfer or
exchange 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 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; provided, however, that the
Trustee may not be required to destroy such cancelled Securities.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months, PROVIDED, HOWEVER, that Additional Interest on
Rule 144A Securities shall be computed on the basis of a 365-day year and the
number of days actually elapsed.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee may use "CUSIP" numbers in notices as
a convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
notice shall not be affected by any defect in or omission of such numbers.
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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, upon Company request
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(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,
and the Company, in the case of (i) or (ii) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the
Stated Maturity, 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.
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Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607 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 premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, 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 the principal of (or premium, if any,
on) any Security at its Maturity; or
(2) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(3) default in the performance, or breach, of Section 801; 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 the performance of which or the breach of which is elsewhere in this
Section specifically dealt with), and continuance of such default or breach for
a period of 30 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
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(5) the occurrence of any event under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of Debt by the Company or any
Subsidiary of the Company or under any mortgage(s), indenture(s) or
instrument(s) under which there may be issued or by which there may be secured
or evidenced any Debt of such type by the Company or any such Subsidiary with a
principal amount then outstanding, individually or in the aggregate, in excess
of $50 million, whether such Debt now exists or shall hereafter be created,
which (i) shall constitute a failure to pay any portion of the principal of such
Debt when due and payable or any portion of interest on such Debt when due and
payable after the expiration of any applicable grace period with respect thereto
or (ii) shall have resulted in, or (with the giving of any notice or the lapse
of time or both) would permit the holder or holders of such Debt (or a trustee
or agent on behalf of such holder or holders) to cause, such Debt becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable; or
(6) a final judgment or final judgments for the payment of money are
entered against the Company or any Subsidiary of the Company in an aggregate
amount in excess of $50 million by a court or courts of competent jurisdiction,
which judgments remain undischarged or unbonded for a period (during which
execution shall not be effectively stayed) of 60 days after the right to appeal
all such judgments has expired; or
(7) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any Subsidiary of the
Company in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or any such Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
such Subsidiary 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 such Subsidiary or of any substantial
part of the property of the Company or any such Subsidiary, or ordering the
winding up or liquidation of the affairs of the Company or any such Subsidiary,
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
(8) the commencement by the Company or any Subsidiary of the Company
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company or any such Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Subsidiary of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any Subsidiary of the
Company, or the filing by the Company or any such Subsidiary of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company or any such Subsidiary to the filing
of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee,
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sequestrator or similar official of the Company or any Subsidiary of the Company
or of any substantial part of the property of the Company or any Subsidiary of
the Company, or the making by the Company or any Subsidiary of the Company of an
assignment for the benefit of creditors, or the admission by the Company or any
such Subsidiary in writing of its inability pay its debts generally as they
become due, or the taking of corporate action by the Company or any such
Subsidiary in furtherance of any such action.
SECTION 502. ACCELERATION OF MATURITY: RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 501(7) or (8)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities 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 and
any accrued interest shall become immediately due and payable. If an Event of
Default specified in Section 501(7) or (8) occurs, the principal of and any
accrued interest on the Securities then Outstanding shall IPSO FACTO become
immediately due and payable without any declaration or other Act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration 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, 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,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by declaration of acceleration
and, to the extent that payment of such interest is lawful, interest
thereon at the rate provided by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the
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
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(2) all Events of Default, other than the non-payment of the
principal of Securities 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.
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 premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the 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 the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders 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
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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.
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 premium,
if any) 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 premium, if any) 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
premium, if any) and interest, respectively.
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SECTION 507. LIMITATION ON SUITS.
No Holder of any Security 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;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the 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 premium, if any) and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security 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
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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 Security 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.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities 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, 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 may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
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(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 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 by a Security Holder 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 or the Trustee.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
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 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.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed
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therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of
the Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such series; and
(4) 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.
(d) 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.
The Trustee shall give the Holders notice of any default hereunder 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), no such
notice to Holders shall be given until at least 30 days
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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.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) 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;
(b) 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 may be evidenced by a Board
Resolution;
(c) 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, Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall 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;
(e) 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;
(f) 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 further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) any expenses and compensation for any services rendered by the
Trustee after the occurrence of an Event of Default specified in Section
501(7) or 501(8) shall, to the extent permitted by law, constitute
expenses and compensation for services of administration under all
applicable federal or state bankruptcy, insolvency, reorganization or
other similar laws.
The provisions of this Section shall survive the termination of this
Indenture.
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 the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, 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,
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 in writing 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);
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(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any and all loss, liability, damage, claim or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust, 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.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for payment of principal of (and premium, if any) or interest on
Securities.
SECTION 608. DISQUALIFICATION; 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.
SECTION 609. CORPORATE TRUSTEE REQUIRED: ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and its Corporate Trust
Office in the City of New York, New York. If such Person 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 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 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.
(a) 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 under Section 611.
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(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
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.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) 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, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) 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 and the appointment of a successor Trustee.
(e) 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, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, 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 appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in
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Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder 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 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. 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.
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.
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).
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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
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record
Date; and
(b) 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.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) 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.
(b) 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 duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) 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 the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after April 15 of each year commencing with the
first April 15 following the first issuance of Securities hereunder, if required
by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit
pursuant to Section 313(c) of the Trust Indenture Act,
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a brief report dated as of such April 15 with respect to any of the events
specified in said Section 313(a) which may have occurred since the later of the
immediately preceding April 15 and the date of this Indenture.
The Trustee shall transmit the reports required by Section 313(b) of the
Trust Indenture Act and Section 602 at the times specified therein.
Reports pursuant to this Section shall be transmitted in the manner and to
the persons required by Section 313(c) and 312(d) of the Trust Indenture Act.
(b) 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 the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the 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 Commission pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 shall be filed with the Trustee
within 15 days after the same is so required to be filed with the Commission.
SECTION 705. OFFICERS' CERTIFICATE WITH RESPECT TO CHANGE IN INTEREST RATES.
Within five days after any Step-Up, a Second Step-Up or Step-Down Date,
the Company shall deliver an Officers' Certificate to the Trustee stating the
new interest rate and the date on which it became effective.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company (a) shall not consolidate with or merge into any other Person;
(b) shall not permit any other Person to consolidate with or merge into the
Company or any Subsidiary of the Company (in a transaction in which such
Subsidiary remains a Subsidiary of the Company); (c) shall not, directly or
indirectly, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its consolidated properties and assets as an entirety; and
(d) shall not, and shall not permit any
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Subsidiary of the Company to, (i) acquire Capital Stock or other ownership
interests of any other Person such that such Person becomes a Subsidiary of the
Company or (ii) directly or indirectly, purchase, lease or otherwise acquire all
or substantially all of the property and assets of any Person as an entirety or
any existing business (whether existing as a separate entity, subsidiary,
division, unit or otherwise) of any Person, UNLESS, in any such transaction:
(1) immediately before and after giving effect to such transaction
no Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(2) in case the Company shall consolidate with or merge into another
Person or shall directly or indirectly transfer, convey, sell, lease or
otherwise dispose of all or substantially all of its properties and assets
as an entirety, the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by transfer, conveyance,
sale, lease or other disposition all or substantially all of the
properties and assets of the Company as entirety (for purposes of this
Article Eight, a "Successor Company") 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 premium, if any) and
interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, lease or acquisition and, if
a supplemental indenture is required in connection with such transaction,
such supplemental indenture, complies 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 transfer, conveyance, sale, lease or other disposition
of all or substantially all of the properties and assets of the Company as an
entirety in accordance with Section 801, the Successor Company 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.
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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, or to surrender any right or power herein conferred upon the
Company; or
(3) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(4) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture, PROVIDED such action pursuant to this Clause (4) shall
not adversely affect the interests of the Holders 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, 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 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 interest on, any Security, or reduce the amount thereof or
the rate of interest thereon or any premium payable thereon, or change the
place of payment where, or the coin or currency in which, any Security or
any premium or the interest thereon is payable,
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or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof; or
(2) reduce the percentage in principal amount of Outstanding
Securities, 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 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 1019, 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.
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.
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SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities 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 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.
ARTICLE TEN
Covenants
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and premium, if
any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities 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 (in or outside the Borough of Manhattan, The City of New York) where
the Securities 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 the Borough of Manhattan, The City
of New York, 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.
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SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of (and premium, if any) or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or 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, it will, prior
to each due date of the principal of (and premium, if any) or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent 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) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same 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 (and premium, if any)
or interest on any Security and
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remaining unclaimed for two years after such principal (and premium, if any) 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 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. EXISTENCE.
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,
rights (charter and statutory) and franchises; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors in good faith shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary of the Company 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, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1006. 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 of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, 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 of its Subsidiaries; PROVIDED,
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<PAGE>
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 1007. MAINTENANCE OF INSURANCE.
The Company shall, and shall cause its Subsidiaries to, keep at all times
all of their properties which are of an insurable nature insured against loss or
damage with insurers believed by the Company to be responsible to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice. The Company shall, and shall cause its Subsidiaries to, use the
proceeds from any such insurance policy to repair, replace or otherwise restore
the property to which such proceeds relate, unless in the good faith judgment of
the Company such use is not in the best interests of the Company or would be
disadvantageous to the holders of the Securities.
SECTIONS 1008 THROUGH 1016. [Reserved]
SECTION 1017. PROVISION OF FINANCIAL INFORMATION.
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall prepare the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to such Section 13(a) or
15(d) or any successor provision thereto if the Company were so required, and,
unless such filing is not permitted under the Exchange Act, file such reports
and other documents with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required so to
file such documents if the Company were so required. The Company shall also in
any event (a) within 15 days of each Required Filing Date (i) transmit by mail
to all Holders, as their names and addresses appear in the Security Register,
without cost to such Holders, and (ii) file with the Trustee copies of such
annual reports, quarterly reports and other documents and (b) if filing such
documents by the Company with the Commission is not permitted under the Exchange
Act, promptly upon written request supply copies of such documents to any
prospective Holder or prospective purchaser of Securities.
SECTION 1018. STATEMENT BY OFFICERS AS TO DEFAULT: COMPLIANCE CERTIFICATES.
(a) The Company will deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company ending after the date hereof an
Officers' Certificate of the principal executive, financial or accounting
officer of the Company, 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 Section 801 or Sections 1004 to
1017, inclusive, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
-52-
<PAGE>
(b) The Company shall deliver to the Trustee, as soon as possible
and in any event within 10 days after the Company becomes aware or should
reasonably become aware of the occurrence of an Event of Default or an event
which, with notice or the lapse of time or both, would constitute an Event of
Default, an Officers' Certificate setting forth the details of such Event of
Default or default, and the action which the Company proposes to take with
respect thereto.
(c) The Company shall deliver to the Trustee within 90 days after
the end of each fiscal year a written statement by the Company's independent
public accountants stating (A) that their audit examination has included a
review of the terms of this Indenture and the Securities as they relate to
accounting matters, and (B) whether, in connection with their audit examination,
any event which, with notice or the lapse of time or both, would constitute an
Event of Default has come to their attention and, if such a default has come to
their attention, specifying the nature and period of the existence thereof.
SECTION 1019. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 801 or Sections 1004 to 1017, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant 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 covenant or condition shall remain in full
force and effect.
SECTION 1020. EXCHANGE AND REGISTRATION RIGHTS.
The Company agrees that each Holder of Rule 144A Securities shall have, to
the extent set forth therein, the rights provided in the Exchange and
Registration Rights. Notwithstanding any other provision of this Indenture, each
such Holder of Rule 144A Securities shall have the right to enforce such
Exchange and Registration Rights as if such Holder and the Company each had
executed and delivered such Exchange and Registration Rights.
-53-
<PAGE>
ARTICLE ELEVEN
Defeasance and Covenant Defeasance
SECTION 1101. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may at its option by Board Resolution, at any time, elect to
have either Section 1102 or Section 1103 applied to the Outstanding Securities
upon compliance with the conditions set forth below in this Article Eleven.
SECTION 1102. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1101
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding 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), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1104 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Eleven. Subject to compliance with this
Article Eleven, the Company may exercise its option under this Section 1102
notwithstanding the prior exercise of its option under Section 1103.
SECTION 1103. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1101
applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1007, inclusive, and (ii) the occurrence
of an event specified in Sections 501(3) (with respect to Clause (1) of Section
801), 501(4) (with respect to any of Sections 1005 through 1007, inclusive),
501(5), and 501(6) shall not be deemed to be an Event of Default on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or Clause, whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or Clause or by reason of any reference in any such Section or Clause to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
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<PAGE>
SECTION 1104. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1102 or Section 1103 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with provisions of this Article
Eleven applicable to it) as trust funds in trust for the purpose of making
the following payments, pledged as security for, and dedicated solely to,
the benefit of Holders of such Securities, (A) money in an amount, or (B)
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,
money in an amount, or (C) a combination thereof, sufficient, in 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 Trustee (or other
qualifying trustee) to pay and discharge, the principal of, premium, if
any, and each instalment of interest on the Securities on the Stated
Maturity of such principal or instalment of interest in accordance with
the terms of this Indenture and of such Securities. For this purpose,
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as 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, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of Securities Act) as custodian with respect to
any such Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of such depository receipt, PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or interest
on the U.S. Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1102, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not
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<PAGE>
recognize gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred.
(3) In the case of an election under Section 1103, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would have been the case if
such deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to any securities of the
Company.
(6) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 501(7)
and (8) are concerned, at any time during the period ending the 121st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(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) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1102 or the covenant defeasance under Section 1103 (as the case may be)
have been complied with.
(9) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such act or exempt from regulation thereunder.
-56-
SECTION 1105. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively, for purposes of this
Section 1105, the "Trustee") pursuant to Section 1104 in respect of the
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 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 premium,
if any) and interest, but such money 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
deposited pursuant to Section 1104 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 the Outstanding Securities.
Anything in this Article Eleven 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 held by it as provided in
Section 1104 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 an equivalent defeasance or covenant
defeasance.
SECTION 1106. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1102 or 1103 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Eleven until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1102 or 1103;
PROVIDED, HOWEVER, that if the Company makes any payment of principal of (and
premium, if any) or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
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<PAGE>
ARTICLE TWELVE
Substitution and Assumption of Obligations by
BNKU Holdings
Pursuant to the Second Supplemental Indenture, BNKU Holdings, in
accordance with Section 801 of the Indenture, assumed the due and punctual
payment of the principal (and premium, if any) and interest on the Securities
and the performance of every covenant of the Indenture on the part of the
Company to be performed or observed. However, notwithstanding Section 802 of the
Indenture, which provides that the Company shall be relieved of all obligations
and covenants under the Indenture and the Securities upon a transfer of all or
substantially all of its properties and assets as an entirety, the Company shall
continue to perform and observe every covenant of the Indenture and shall remain
obligated as a co-obligor with BNKU Holdings on the Securities; provided,
however, that the Company shall, upon BNKU Holdings' request, pay the principal
(and premium, if any) and interest on, and indemnify BNKU Holdings against any
loss that BNKU Holdings may sustain with respect to, the Securities.
ARTICLE THIRTEEN
Effectiveness of Third Supplemental Indenture
This Third Supplemental Indenture has been executed as of March 27, 1997.
However, this Third Supplemental Indenture, and the amendment and restatement of
the Indenture reflected herein, shall not become operative unless and until
Securities representing a majority in principal amount of the Outstanding
Securities on the close of business on March 25, 1997, the record date fixed by
the Company for determining the Holders entitled to give their consent to the
Proposed Amendments, are accepted for payment by the Company pursuant to the
Offer, at which time the amendment and restatement of the Indenture set forth
herein shall become operative for all purposes.
-----------------
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.
-58-
<PAGE>
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.
BANK UNITED CORP.
By: /S/ ANTHONY J. NOCELLA
Anthony J. Nocella
Executive Vice President and
Chief Financial Officer
Attest:
/S/ RUSSELL MCCANN
BNKU HOLDINGS, INC.
By: /S/ ANTHONY J. NOCELLA
Anthony J. Nocella
Vice President and Chief
Financial Officer
Attest:
/S/ RUSSELL MCCANN
THE BANK OF NEW YORK
By: /S/ REMO J. REALE
Name: REMO J. REALE
Assistant Vice President
Attest:
/S/ MARY LA GUMINA
-59-
<PAGE>
STATE OF TEXAS )
COUNTY OF HARRIS ) ss.:
On the 27th day of March, 1997, before me personally came Anthony J.
Nocella, to me known, who, being by me duly sworn, did depose and say that he is
Executive Vice President and Chief Financial Officer of BANK UNITED CORP., one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
/S/ DARLENE TREGRE
Notary Public, State of Texas
My Commission Expires
September 21, 1997
STATE OF TEXAS )
COUNTY OF HARRIS ) ss.:
On the 27th day of March, 1997, before me personally came Anthony J.
Nocella, to me known, who, being by me duly sworn, did depose and say that he is
Vice President and Chief Financial Officer of BNKU Holdings, Inc. one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/S/ DARLENE TREGRE
Notary Public, State of Texas
My Commission Expires
September 21, 1997
-59-
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On the 27th day of March, 1997, before me personally came Remo J. Reale,
to me known, who, being by me duly sworn, did depose and say that he is
Assistant Vice President of THE BANK OF NEW YORK, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/S/ WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 1998
-60-
EXHIBIT 5
April 1, 1997
Bank United Corp.
3200 Southwest Freeway, Suite 1600
Houston, Texas 77027
Ladies and Gentlemen:
We have acted as counsel for Bank United Corp., a Delaware corporation
("Company"), in connection with the Registration Statement on Form S-1
(Registration No. 333-19861), as amended, filed by the Company under the
Securities Act of 1933, as amended ("Registration Statement"), with respect to
up to $100,000,000 principal of the Company's __% Subordinated Notes due 2004
(the "2004 Notes") and up to $120,000,000 of the Company's __% Subordinated
Notes due 2007 (the "2007 Notes" and, with the 2004 Notes, the "Notes"). The
Notes are to be issued under an indenture to be dated as of April __, 1997 (the
"Indenture") between the Company and The Bank of New York, as Trustee (the
"Trustee").
In such capacity we are familiar with the Restated Certificate of Incorporation,
as amended, and the Bylaws of the Company, the Registration Statement and the
Indenture and have examined all statutes, records, instruments and documents as
we have deemed necessary for purposes hereof. In addition, we have relied on
certificates of officers of the Company and of public officials and others as to
certain matters of fact relating to this opinion and have made such
investigations of law as we have deemed necessary and relevant as a basis
hereof. We have assumed the genuineness of all signatures, the authenticity of
all documents and records submitted to us as originals, the conformity to
original documents and records of all documents and records submitted to us as
copies and the truthfulness of all statements of fact contained therein.
Based on the foregoing and subject to the limitations and assumptions set forth
herein, and having due regard for such legal considerations as we deem relevant,
we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware.
<PAGE>
Bank United Corporation
April 1, 1997
Page 2
2. When (a) the Indenture has been duly executed and delivered by duly
authorized officers of the Company and the Trustee, (b) duly authorized officers
of the Company have executed the Notes (manually or in facsimile), (c) the Notes
have been duly authenticated by the Trustee under the Indenture and sold in the
manner contemplated in the Registration Statement and (d) payment of the agreed
consideration for the Notes has been received by the Company, the Indenture will
be a validly and legally binding instrument in accordance with its terms and the
Notes will be entitled to the benefits of the Indenture and will be legally
issued and binding obligations of the Company, except in each case as the same
may be limited by bankruptcy, insolvency, reorganization or other laws relating
to or affecting generally the enforcement of creditors' rights and by general
equitable principles.
We hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement and to the reference to
us under the caption "Legal Matters."
Very truly yours,
Bracewell & Patterson, L.L.P.
JRB/jrb
EXHIBIT 12
BANK UNITED CORP
RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE THREE
MONTHS ENDED SEPTEMBER 30,
DECEMBER 31, ----------------------------------------------------------
1996 1996 1995 1994 1993 1992
------------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Income before income taxes, minority
interest, and extraordinary loss... $ 35,459 $ 67,836 $ 90,111 $ 86,081 $ 122,303 $ 56,805
Fixed charges........................ 135,316 592,670 560,989 328,940 308,181 355,860
------------- ---------- ---------- ---------- ---------- ----------
Income before income taxes, minority
interest, extraordinary loss, and
fixed charges...................... $ 170,775 $ 660,506 $ 651,100 $ 415,021 $ 430,484 $ 412,665
============= ========== ========== ========== ========== ==========
FIXED CHARGES
Interest expense..................... $ 133,318 $ 584,778 $ 552,760 $ 320,924 $ 300,831 $ 348,291
One-third net rental expense......... 1,736 6,892 7,253 7,039 6,656 7,007
Amortization of debt expense......... 262 1,000 976 977 694 562
------------- ---------- ---------- ---------- ---------- ----------
Total fixed charges.................. $ 135,316 $ 592,670 $ 560,989 $ 328,940 $ 308,181 $ 355,860
============= ========== ========== ========== ========== ==========
Earnings to fixed charges ratio:
Actual.......................... 1.26 1.11 1.16 1.26 1.40 1.16
</TABLE>
1
<PAGE>
BANK UNITED CORP.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND BANK'S PREFERRED STOCK DIVIDENDS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE THREE
MONTHS ENDED SEPTEMBER 30,
DECEMBER 31, ----------------------------------------------------------
1996 1996 1995 1994 1993 1992
------------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Income before income taxes, minority
interest, and extraordinary loss...... $ 35,459 $ 67,836 $ 90,111 $ 86,081 $ 122,303 $ 56,805
Fixed charges........................... 135,316 592,670 560,989 328,940 308,181 355,860
------------- ---------- ---------- ---------- ---------- ----------
Income before income taxes, minority
interest, extraordinary loss, and
fixed charges......................... $ 170,775 $ 660,506 $ 651,100 $ 415,021 $ 430,484 $ 412,665
============= ========== ========== ========== ========== ==========
COMBINED FIXED CHARGES AND BANK'S
PREFERRED STOCK DIVIDENDS
Interest expense........................ $ 133,318 $ 584,778 $ 552,760 $ 320,924 $ 300,831 $ 348,291
One-third net rental expense............ 1,736 6,892 7,253 7,039 6,656 7,007
Amortization of debt expense............ 262 1,000 976 977 694 562
------------- ---------- ---------- ---------- ---------- ----------
Total fixed charges........... 135,316 592,670 560,989 328,940 308,181 355,860
Bank's Preferred Stock dividends,
pre-tax basis:
Series A........................... 3,514 14,711 14,011 14,006 10,581 --
Series B........................... 3,899 16,321 3,152 -- -- --
------------- ---------- ---------- ---------- ---------- ----------
Combined fixed charges and Bank's
Preferred Stock dividends............. $ 142,729 $ 623,702 $ 578,152 $ 342,946 $ 318,762 $ 355,860
============= ========== ========== ========== ========== ==========
Earnings to combined fixed charges and
Bank's Preferred Stock dividends
ratio:
Actual........................ 1.20 1.06 1.13 1.21 1.35 1.16
</TABLE>
2
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of Bank United Corp.
on Form S-1 of our report dated October 28, 1996, appearing in the Prospectus,
which is part of this Registration Statement.
We also consent to the reference to us under the headings "Selected
Consolidated Financial and Other Data" and "Experts" in such Prospectus.
DELOITTE & TOUCHE LLP
Houston, Texas
April 1, 1997
EXHIBIT 25
CONFORMED COPY
=============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) |__|
THE BANK OF NEW YORK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-5160382
(STATE OF INCORPORATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
48 WALL STREET, NEW YORK, N.Y. 10286
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK UNITED CORP.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-3528556
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
3200 SOUTHWEST FREEWAY
SUITE 1600
HOUSTON, TEXAS 77027
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
----------------------
% SUBORDINATED NOTES DUE 2004
% SUBORDINATED NOTES DUE 2007
(TITLE OF THE INDENTURE SECURITIES)
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<PAGE>
EXHIBIT 25
CONFORMED COPY
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
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NAME ADDRESS
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SUPERINTENDENT OF BANKS OF THE STATE OF 2 RECTOR STREET, NEW YORK,
NEW YORK N.Y. 10006, AND ALBANY,
N.Y. 12203
FEDERAL RESERVE BANK OF NEW YORK 33 LIBERTY PLAZA, NEW YORK,
N.Y. 10045
FEDERAL DEPOSIT INSURANCE CORPORATION WASHINGTON, D.C. 20429
NEW YORK CLEARING HOUSE ASSOCIATION NEW YORK, NEW YORK 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
YES.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
NONE.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24 OF THE
COMMISSION'S RULES OF PRACTICE.
1. A COPY OF THE ORGANIZATION CERTIFICATE OF THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY) AS NOW IN EFFECT, WHICH CONTAINS THE
AUTHORITY TO COMMENCE BUSINESS AND A GRANT OF POWERS TO EXERCISE
CORPORATE TRUST POWERS. (EXHIBIT 1 TO AMENDMENT NO. 1 TO FORM T-1
FILED WITH REGISTRATION STATEMENT NO. 33-6215, EXHIBITS 1A AND 1B TO
FORM T-1 FILED WITH REGISTRATION STATEMENT NO. 33-21672 AND EXHIBIT
1 TO FORM T-1 FILED WITH REGISTRATION STATEMENT NO.
33-29637.)
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE. (EXHIBIT 4 TO FORM
T-1 FILED WITH REGISTRATION STATEMENT NO. 33-31019.)
6. THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(B) OF THE ACT.
(EXHIBIT 6 TO FORM T-1 FILED WITH REGISTRATION STATEMENT NO.
33-44051.)
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR TO THE REQUIREMENTS OF ITS SUPERVISING OR
EXAMINING AUTHORITY.
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<PAGE>
EXHIBIT 25
CONFORMED COPY
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE ACT, THE TRUSTEE, THE BANK OF NEW
YORK, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW
YORK, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF NEW YORK, AND
STATE OF NEW YORK, ON THE 25TH DAY OF MARCH, 1997.
THE BANK OF NEW YORK
BY: /S/ PAUL J. SCHMALZEL
NAME: PAUL J. SCHMALZEL
TITLE: ASSISTANT TREASURER
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<PAGE>
EXHIBIT 7
TO EXHIBIT 25
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1996, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ...................................... $ 4,404,522
Interest-bearing balances .............................. 732,833
Securities:
Held-to-maturity securities ............................ 789,964
Available-for-sale securities .......................... 2,005,509
Federal funds sold in domestic
offices of the bank:
Federal funds sold ....................................... 3,364,838
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ............................................... 28,728,602
LESS: Allowance for loan and
lease losses ......................................... 584,525
LESS: Allocated transfer risk
reserve .............................................. 429
Loans and leases, net of unearned
income, allowance, and reserve ....................... 28,143,648
Assets held in trading accounts .......................... 1,004,242
Premises and fixed assets (including
capitalized leases) .................................... 605,668
Other real estate owned .................................. 41,238
Investments in unconsolidated
subsidiaries and associated
companies .............................................. 205,031
Customers' liability to this bank on
acceptances outstanding ................................ 949,154
Intangible assets ........................................ 490,524
Other assets ............................................. 1,305,839
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Total assets ............................................. $ 44,043,010
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<PAGE>
LIABILITIES
Deposits:
In domestic offices .................................... $ 20,441,318
Noninterest-bearing .................................... 8,158,472
Interest-bearing ....................................... 12,282,846
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ....................... 11,710,903
Noninterest-bearing .................................... 46,182
Interest-bearing ...................................... 11,664,721
Federal funds purchased in
domestic offices of the bank:
Federal funds purchased ................................ 1,565,288
Demand notes issued to the U.S. ..........................
Treasury ............................................... 293,186
Trading liabilities ...................................... 826,856
Other borrowed money:
With original maturity of one year
or less .............................................. 2,103,443
With original maturity of more than
one year ............................................. 20,766
Bank's liability on acceptances exe-
cuted and outstanding .................................. 951,116
Subordinated notes and debentures ........................ 1,020,400
Other liabilities ........................................ 1,522,884
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Total liabilities ........................................ 40,456,160
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EQUITY CAPITAL
Common stock ............................................. 942,284
Surplus .................................................. 525,666
Undivided profits and capital
reserves ............................................... 2,129,376
Net unrealized holding gains
(losses) on available-for-sale
securities ............................................. (2,073)
Cumulative foreign currency transla-
tion adjustments ....................................... (8,403)
------------
Total equity capital ..................................... 3,586,850
------------
Total liabilities and equity
capital ................................................ $ 44,043,010
============
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<PAGE>
EXHIBIT 7
TO EXHIBIT 25
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
-
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