<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION VIA THE EDGAR SYSTEM ON
SEPTEMBER 13, 1995
REGISTRATION NO. 33-
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--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ADVANTA CORP.
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 23-1462070
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
BRANDYWINE CORPORATE CENTER, 650 NAAMANS ROAD, CLAYMONT, DELAWARE 19703
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
------------------------
GENE S. SCHNEYER, ESQUIRE
ADVANTA CORP.
FIVE HORSHAM BUSINESS CENTER
300 WELSH ROAD, HORSHAM, PA 19044
(215) 657-4000
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
registration statement for the same offering: / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering: / /
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box: / /
------------------------
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
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Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to be Offering Offering Registration
Securities Being Registered Registered Price Per Unit Price Fee
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RediReserve Variable Rate Certificates,
Notes.................................. $178,021,000 100% $178,021,000 $61,387
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</TABLE>
The Prospectus constituting part of this Registration Statement also
constitutes part of the Company's Registration Statement, File No. 33-61555
(which became effective August 24, 1995 and which covers $21,979,000 of unsold
Securities). $7,579.00 of filing fees were paid with respect to such unsold
Securities.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED , 1995
$200,000,000 PRINCIPAL AMOUNT
ADVANTA CORP LOGO
REDIRESERVE VARIABLE RATE CERTIFICATES ($1,000 MIN.)
91 DAY NOTES
SIX, EIGHTEEN AND THIRTY MONTH NOTES
ONE, TWO, THREE, FOUR, FIVE, SEVEN AND TEN YEAR NOTES
The Securities offered hereby are debt securities of Advanta Corp. (the
"Company") consisting of RediReserve Variable Rate Certificates (the
"RediReserve Certificates") and Notes (the "Notes", and together with the
RediReserve Certificates, the "Securities").
The interest rates on the Notes and RediReserve Certificates will be
established by the Company from time to time and will be set forth in
supplements hereto. Interest rates are subject to change by the Company, but no
such change will affect any Security theretofore issued or as to which an offer
to purchase has been accepted by the Company.
The RediReserve Certificates are redeemable at the demand of the holder. The
Notes are subject to automatic extension at maturity unless the Company requests
redemption at least seven days prior to maturity or the holder elects
redemption, in writing, within seven days after maturity. For information on the
terms of such extensions, including the interest rate to be paid during any
extended term, see "Description of Securities -- Provisions Relating to Notes."
The Securities will be uncertificated and evidenced by book-entry and a
statement issued to each purchaser.
A tabular summary of certain other terms of the Securities offered hereby
appears at page 5.
The Company is not subject to state or federal regulations applicable to
banks and savings and loan associations, including, among other things,
regulations regarding the maintenance of reserves and the quality or condition
of its assets. The Securities offered hereby represent unsecured obligations of
the Company and are not insured or guaranteed by the Federal Deposit Insurance
Corporation ("FDIC") or any other governmental or private entity. SEE "RISK
FACTORS" ON PAGE 6.
The Securities are being offered by the Company directly without an
underwriter or selling agent. The Securities are being offered on a continuous
basis without an expected termination date. See "Plan of Distribution." The
terms of the offering or the Securities may be modified prospectively at any
time. Certain terms of outstanding RediReserve Certificates may be modified. See
"Description of Securities." There is no assurance that all or any portion of
the offered Securities will be sold. It is not expected that there will be a
trading market for any of the Securities. The Company reserves the right to
reject any subscription in whole or in part.
The Securities being offered will not be listed on a securities exchange and
the Company does not expect that any active trading market in the Securities
will develop or be sustained.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS, ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
------------------------
THE SECURITIES OFFERED HEREBY ARE NOT REGISTERED UNDER THE PENNSYLVANIA
SECURITIES ACT OF 1972. FOR SALES IN PENNSYLVANIA, THE COMPANY IS RELYING
UPON AN EXEMPTION FROM THAT ACT'S REGISTRATION REQUIREMENTS WHICH
IS AVAILABLE FOR THE OFFER AND SALE OF SECURITIES SENIOR TO
SECURITIES OF THE SAME ISSUER WHICH SECURITIES SATISFY
THE MARGIN REQUIREMENTS OF THE BOARD OF GOVERNORS
OF THE FEDERAL RESERVE SYSTEM UNDER
REGULATION T.
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<S> <C> <C> <C>
UNDERWRITING
PRICE TO COMMISSIONS AND PROCEEDS
PUBLIC(1)(2) DISCOUNTS TO THE COMPANY
---------------------------------------------------------------------------------------------------------------------
Per Security............................. 100% None 100%(2)
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Total.................................... $200,000,000 None $200,000,000(2)
=====================================================================================================================
</TABLE>
(1) RediReserve Certificates will be issued in payment of interest due on
RediReserve Certificates.
(2) Before deducting expenses estimated at $101,000.00.
------------------------
The date of this Prospectus is September , 1995.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information.................... 2
Incorporation of Certain Information by
Reference.............................. 2
Summary of the Offering.................. 3
The Company............................ 3
Securities Offered..................... 3
Modification, Termination or Extension
of Offering......................... 4
Trustee and Indenture.................. 4
Highlights of Terms of Securities
Offered................................ 5
Risk Factors............................. 6
Ratio of Earnings to Fixed Charges....... 7
Plan of Distribution..................... 7
Use of Proceeds.......................... 7
Description of Securities................ 7
General................................ 7
Provisions Relating to RediReserve
Certificates........................ 8
Provisions Relating to Notes........... 10
Provisions Relating to All
Securities.......................... 11
Legal Opinion............................ 13
Experts.................................. 13
</TABLE>
No Company employee or other person has been authorized to give any oral
information or to make any oral representation other than those contained in
this Prospectus and, if given or made, such information or representation must
not be relied upon as having been authorized by the Company. This Prospectus
does not constitute an offer of any securities other than those to which it
relates or to any person in any jurisdiction where such offer would be unlawful.
The delivery of this Prospectus at any time does not imply that the information
herein is true as of any time subsequent to its date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports and other information with the Securities and Exchange Commission (the
"Commission"). Such reports and other information can be inspected and copied at
the public reference facilities maintained by the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: Seven World Trade Center, 13th Floor, New York, N.Y.
10048; and Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material may also be obtained at
prescribed rates from the Public Reference Section of the Commission at the
address of the Commission set forth above.
The Company has filed with the Commission registration statements
(collectively, with all amendments and exhibits thereto, called the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the Securities offered hereby. This
Registration Statement and the descriptions of documents contained herein are
complete in all material respects. However, this Prospectus does not contain all
of the information set forth in the Registration Statement. For further
information with respect to the Company and the Securities offered hereby,
reference is made to the Registration Statement. Statements contained herein
concerning any document are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement. Each such statement is qualified in its entirety by such
reference. Copies of all or any part of the Registration Statement, including
exhibits thereto, may be obtained, upon payment of the prescribed fees, at the
offices of the Commission as set forth above.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
As required by the Commission, the Company hereby incorporates by
reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31 and June 30, 1995; and
2
<PAGE> 4
3. The Company's Current Reports on Form 8-K dated January 24, April 19,
July 12, July 20, August 3, and August 15, 1995.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a Post-Effective
Amendment which indicates that all Securities offered have been sold or which
deregisters all Securities then remaining unsold, shall be deemed to be
incorporated by reference in the Registration Statement and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes hereof to the extent that a statement
contained herein or any subsequently filed document which is deemed to be
incorporated by reference herein modifies or supersedes such document. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part hereof.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon written or oral request, a copy of any
document incorporated herein by reference (other than exhibits to such document
which are not specifically incorporated by reference in such document). Requests
for such documents should be directed to: Investor Relations, Advanta Corp.,
Five Horsham Business Center, 300 Welsh Road, Horsham, Pennsylvania 19044-2209,
telephone (215) 784-5335.
SUMMARY OF THE OFFERING
The following information is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus.
THE COMPANY
The Company is a highly focused direct marketer of select consumer
financial services. The Company primarily originates and services credit cards
and mortgage loans. Other businesses include small ticket equipment leasing,
credit insurance and deposit products nationwide. At June 30, 1995, assets under
management totaled approximately $10.6 billion.
The Company was incorporated in Delaware in 1974 as Teachers Service
Organization, Inc., the successor to a business originally founded in 1951. In
January 1988, the Company's name was changed from TSO Financial Corp. to Advanta
Corp. The Company's principal executive office is located at Brandywine
Corporate Center, 650 Naamans Road, Claymont, Delaware 19703. Its principal
operating offices are located at Five Horsham Business Center, 300 Welsh Road,
Horsham, Pennsylvania 19044. The Company's telephone numbers at its principal
executive and operating offices are, respectively, (302) 791-4400 and (215)
657-4000.
SECURITIES OFFERED
This offering relates to $200,000,000 in principal amount of the following
Securities of the Company: RediReserve Variable Rate Certificates ("RediReserve
Certificates") and Notes ("Notes"). The RediReserve Certificates are payable on
the demand of the holder. The Notes have maturities of 91 Days, six months, one
year, 18 months, two years, 30 months, and three, four, five, seven and ten
years after the date of issue. The Securities are not insured, guaranteed or
secured by any lien on assets of the Company and there are no sinking fund
provisions.
In lieu of paying interest by check, additional RediReserve Certificates
will be issued in payment of interest due on RediReserve Certificates. Interest
on RediReserve Certificates will only be paid in such manner, except that upon
redemption by a holder of all RediReserve Certificates held by such holder, any
accrued interest will be paid by check. Further, subject to the limitations
described under "Redemption at Holder's Election" and "Redemption by Draft,"
holders may access by draft all funds held in the form of RediReserve
Certificates.
3
<PAGE> 5
No interest will be paid on RediReserve Certificates for any day during
which the principal balance in an account is below $1,000.
A tabular summary of the terms of the Securities appears on page 5.
MODIFICATION, TERMINATION OR EXTENSION OF OFFERING
The Company reserves the right to modify at any time the terms of the
offering or the Securities as set forth on the cover page of this Prospectus.
Any such modification will apply only to Securities offered after the date of
such modification, except as described under "Description of Securities --
General." From time to time, the aggregate amount of Securities offered for sale
by the Company may be increased.
TRUSTEE AND INDENTURE
The Securities are to be issued under the terms of the Trust Indenture to
be entered into between the Company and CoreStates Bank, N.A. ("CoreStates"), as
Trustee (the "Indenture"). CoreStates is also the trustee under a Trust
Indenture dated April 22, 1981 between the Company and a predecessor of
CoreStates (the "Prior Indenture"). Securities to be issued initially under the
Indenture will be substantially identical to those issued under the Prior
Indenture, except that Securities issued under the Prior Indenture are
subordinated in right of payment to Senior Debt of the Company (as defined in
the Prior Indenture) whereas Securities to be issued under the Indenture will
not be subordinated. In addition, the definition of "Event of Default" in the
Indenture includes a default in the performance by the Company of covenants in
the Indenture that continues for 60 days (as opposed to 30 days in the Prior
Indenture) after the Company has been given notice of the default by the Trustee
or holders of at least 25% in principal amount of the outstanding Securities of
the applicable series (as opposed to 10% in principal amount of the outstanding
Securities in the Prior Indenture); and a default under Senior Debt constitutes
an Event of Default in the Prior Indenture, but not in the Indenture. The
Company intends to exchange Securities issued under the Indenture for the
comparable Securities issued under the Prior Indenture without any cost to the
holders of Securities. The Company expects that substantially all Securities
issued under the Prior Indenture will be cancelled in connection with this
exchange. To the extent that RediReserve Certificates issued under the Prior
Indenture remain outstanding after the exchange, RediReserve Certificates issued
under the Prior Indenture would be paid as interest on such RediReserve
Certificates pursuant to this Prospectus and the Registration Statement.
Mellon Bank Corporation ("Mellon") has signed a definitive agreement to
purchase the corporate trust business of CoreStates upon satisfaction of certain
conditions precedent set forth in the agreement. The actual purchase will not
occur until a future date to be established by Mellon and CoreStates. The
Indenture (as defined herein) provides that any corporation to which the Trustee
sells its corporate trust business will automatically become the successor
Trustee without any further action. It is expected that upon consummation of the
sale of the corporate trust business of CoreStates to Mellon pursuant to the
agreement described above, Mellon will become successor Trustee under the
Indenture.
4
<PAGE> 6
HIGHLIGHTS OF TERMS OF SECURITIES OFFERED
<TABLE>
<CAPTION>
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<S> <C>
REDIRESERVE
VARIABLE RATE
CERTIFICATES
-------------------------------------------------------------------------------------------------
Denomination of Initial Minimum initial purchase: $1,000 or any amount in excess thereof;
Purchase and Additional additional purchases in any amount.
Purchases
-------------------------------------------------------------------------------------------------
Annual Interest Interest rate on all outstanding Certificates may vary from week to
week. The rate will be set each week by the Company, based on market
conditions and the Company's financial requirements. No interest will be
paid for any day on which the principal balance in an account is below
the minimum balance (currently $1,000).
-------------------------------------------------------------------------------------------------
Payment of Interest Quarterly, on each March 31, June 30, September 30 and December 31,
accrued interest is added to the principal in each account in the form
of additional RediReserve Certificates. Except as otherwise provided
herein, no checks will be issued in payment of interest.
-------------------------------------------------------------------------------------------------
Redemption by Holder Redeemable by holder upon oral or written demand, or by draft.
Redemption must be at least $250 except for redemption to close an
account.
-------------------------------------------------------------------------------------------------
Redemption by Company Redeemable on 30 days' notice.
-------------------------------------------------------------------------------------------------
Form Book-entry and non-negotiable.
(A statement will be issued, not a promissory note).
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Automatic Extension Not applicable (no fixed maturity).
-------------------------------------------------------------------------------------------------
<CAPTION>
<S> <C>
91 DAY, SIX, EIGHTEEN AND THIRTY
MONTH, AND ONE, TWO, THREE, FOUR, FIVE,
SEVEN AND TEN YEAR NOTES
-------------------------------------------------------------------------------------------------
Denomination of Initial Minimum purchase: $5,000 or other amount as specified by the
Purchase and Additional Company.
Purchases
-------------------------------------------------------------------------------------------------
Annual Interest Fixed by the Company based on market conditions and the Company's
financial requirements. Once determined, the rate on each Note
remains fixed until its maturity, but may change if the Note is
extended and will be set forth in a supplement hereto.
-------------------------------------------------------------------------------------------------
Payment of Interest On Notes with maturities of 91 days or six months, interest is
compounded daily and paid at maturity. On all other Notes, at the
election of the holder, interest is compounded daily and paid at
maturity or may be paid monthly, quarterly, semi-annually or
annually.
-------------------------------------------------------------------------------------------------
Redemption by Holder May be redeemed by the original holder after total permanent
disability or by his estate after death, at the principal amount
plus accrued interest. Otherwise, there is no right of the holder
to cause redemption prior to maturity. For a statement of the
terms on which the Company, in its sole discretion, may
repurchase the Notes, see "Description of
Securities -- Provisions Relating to Notes."
-------------------------------------------------------------------------------------------------
Redemption by Company Not redeemable until maturity.
-------------------------------------------------------------------------------------------------
Form Book-entry and non-negotiable.
(A statement will be issued, not a promissory note).
-------------------------------------------------------------------------------------------------
Automatic Extension If the Company does not request redemption at least seven days
prior to maturity or if not redeemed by holder within seven days
after its maturity date, then a Note with a principal amount of
$2,500 or more will be extended automatically for a period equal
to the original term. A Note with a principal amount that is less
than $2,500 at maturity will automatically be redeemed. Notes are
extended at the rate being offered on newly-issued Notes of like
tenor, term and denomination at their respective maturity dates.
If similar Notes are not then being offered, absent instructions
from the Noteholder selecting a Note with a term currently being
offered, the maturing Note will be redeemed.
-------------------------------------------------------------------------------------------------
</TABLE>
The Securities are unsecured obligations of the Company. The Company is not
subject to state or federal regulation applicable to banks and savings and loan
associations with regard to insurance, the maintenance of reserves, or the
quality or condition of its assets or other matters. It is not expected that
there will be a trading market for the Notes, see "Description of
Securities -- Provisions Relating to the Notes -- Liquidity."
The Securities are not insured or guaranteed by any bank subsidiary of the
Company or any other public or private entity.
5
<PAGE> 7
RISK FACTORS
Investors in the Securities offered hereby should consider the following
factors:
Absence of Insurance and Guarantees. The Securities are not insured by any
governmental or other entity such as the FDIC as are bank, savings and loan or
credit union accounts, and they are not guaranteed by any public or private
entity. In these respects, the Company is similar to most other commercial
enterprises (including bank holding companies) which sell debt securities to
public investors, but is dissimilar to most banking or savings institutions.
Limited Availability of Bank and Insurance Company Assets; Impact on
Liquidity. Banking regulations limit the amount of dividends that a bank may
pay. Further, because of regulatory considerations, Colonial National Bank USA
and Advanta National Bank (the "Banks"), which are subsidiaries of the Company,
do not intend to make loans to the Company. In addition, Arizona insurance
regulations restrict the amount of dividends which an insurance company may
distribute without the prior consent of the Director of Insurance.
The limited availability to the Company of dividends from its subsidiaries
impacts the Company's liquidity. While the Company was paid substantial
dividends by its subsidiaries in 1994 and such dividends are expected to remain
significant, for the reasons described above, dividends from the Banks and the
Company's insurance subsidiaries are not expected, for the foreseeable future,
to be the Company's major source of liquidity in satisfying its obligations to
creditors or in providing a source of dividend payments to stockholders. At June
30, 1995, approximately $67 million were available from the Company's
subsidiaries for the payment of dividends and other distributions to the Company
without prior regulatory approval.
Risks Associated with Maintaining Portfolios of Credit Card Receivables and
Mortgage Loans. There are certain risks associated with maintaining portfolios
of credit card receivables and mortgage loans. The primary risks involve the
possibility of future economic downturns causing an increase in credit losses,
and interest rate fluctuations. These risks are inherent to every lender. The
Company believes its credit loss experience is generally comparable to industry
averages. With respect to interest rate fluctuations, the Company pursues a
disciplined interest rate risk management strategy, which includes computer
simulations of various scenarios, that it believes will enable it to readily
adjust to most market variations.
Regulation. The banking and finance businesses in general are the subject
of extensive regulation at both the state and federal levels. Numerous
legislative and regulatory proposals are advanced each year which, if adopted,
could adversely affect the Company's profitability or the manner in which the
Company conducts its activities. In addition, the outcome of pending litigation
against other credit card issuers concerning the legality of certain credit card
fees and charges may adversely impact the Company's business.
Competition. As a marketer of credit products, the Company faces intense
competition from numerous providers of financial services. Although the Company
believes it is generally competitive, there can be no assurance that its ability
to market its services successfully or to obtain adequate yields on its loans
will not be impacted by the nature of the competition that now exists or may
develop.
Limited Events of Default; Absence of Provisions Relating to Highly
Leveraged Transactions or a Change in Control. The Indenture contains only
limited events of default other than default in the timely payment of principal
or interest. See "Description of Securities -- Provisions Relating to All
Securities -- Events of Default." Neither the Indenture nor the Prior Indenture
contain any covenants or other provisions to afford protection to holders of
Securities in the event of a highly leveraged transaction or a change in the
control of the Company.
6
<PAGE> 8
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
the Company for the periods indicated:
<TABLE>
<CAPTION>
SIX
MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
----------- --------------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges*.................. 2.34 2.84 2.71 2.52 1.81 1.36 1.20
</TABLE>
---------------
* Fixed charges represent interest plus one-third of all rentals.
PLAN OF DISTRIBUTION
The Securities will be sold by the Company directly without an underwriter
or selling agent. The Securities will be sold by employees of the Company who,
pursuant to Rule 3a4-1(a) promulgated under the Exchange Act, are deemed not to
be brokers. In accordance with certain provisions of Rule 3a4-1(a), such
employees are not compensated by commission, are not associated with any broker
or dealer and limit their activities so that, among other things, they do not
engage in oral solicitations of, and comply with certain specified limitations
when responding to inquiries from, potential purchasers.
The Company may vary the terms and conditions of the offer by state,
locality or as otherwise described under "Description of
Securities -- Provisions Relating to All Securities -- Additional Interest" and
"-- Variations in Terms and Conditions" in this Prospectus. Further, the Company
may offer different Securities at different times depending on such factors as
the Company's liquidity requirements, the interest rate environment and other
economic conditions.
USE OF PROCEEDS
The net proceeds to the Company from the sale of Securities will be used
for general corporate purposes, including the purchase of assets from,
investments in and extensions of credit to, subsidiaries and affiliates of the
Company which will use the proceeds for general corporate purposes; and,
possibly, for financing future acquisitions by the Company, including without
limitation, acquisitions of credit card, mortgage and equipment lease
portfolios. At the date hereof, no specific proposed acquisitions have been
identified as probable. Proceeds may also be used to invest in income-producing
securities and other assets. The amount of Securities offered from time to time
and the precise amounts and timing of the applications of such proceeds will
depend upon funding requirements of the Company and its subsidiaries and
affiliates.
In view of its anticipated requirements, the Company expects to engage on a
recurring basis in additional private or public financing of a character and
amount to be determined as the need arises.
DESCRIPTION OF SECURITIES
GENERAL
This offering relates to the RediReserve Certificates and the Notes. The
Notes have maturities of 91 Day months, six months, one year, 18 months, two
years, 30 months, or three, four, five, seven or ten years after their
respective dates of issue. The Securities are to be issued under a Trust
Indenture (the "Indenture") to be entered into between the Company and
CoreStates Bank, N.A., a national banking association, as trustee (the
"Trustee"). A copy of the Indenture is filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The following statements are brief
summaries of certain provisions of the Indenture, and are subject to the
detailed provisions of the Indenture, to which
7
<PAGE> 9
reference is hereby made for a complete statement of such provisions. Whenever
particular provisions of the Indenture or terms defined therein are referred to
herein, such provisions or definitions are incorporated by reference as part of
the statements made herein and the statements are qualified in their entirety by
such reference. Parenthetical Section and Article references appearing below are
to the Indenture. As described above under "Summary of the Offering -- Trustee
and Indenture," in limited circumstances RediReserve Certificates issued under
the Prior Indenture may be issued pursuant to this Prospectus and the
Registration Statement.
The Indenture may be modified as set forth below. Additionally, the Company
has reserved the right to terminate this offering, or modify the terms of the
offering or the Securities, at any time, by an appropriate amendment to this
Prospectus, but no such modification will affect the rights of the holders of
then outstanding Securities, except that, at the Company's election: (i) the
principal amount required to be maintained in an existing RediReserve
Certificate account may be increased (after 30 days' notice) or decreased; (ii)
the minimum amount of any withdrawal from a RediReserve Certificate account may
be increased (after 30 days' notice) or decreased; and (iii) certain service
charges may be imposed or modified as described under "Description of
Securities -- Provisions Relating to all Securities."
The Securities are not secured by any collateral or lien. There are no
provisions for a sinking fund.
PROVISIONS RELATING TO REDIRESERVE CERTIFICATES
Form; Non-negotiability and Statements: RediReserve Certificates are not
negotiable and are not evidenced by any promissory note issued to the holder. A
statement evidencing ownership of a RediReserve Certificate will be issued to
each purchaser of a RediReserve Certificate, but such statement is not a
negotiable instrument, and no rights of ownership in a RediReserve Certificate
can be transferred by mere endorsement and delivery of such a statement to a
purchaser. Each holder of a RediReserve Certificate will receive, at the end of
the month after each investment, withdrawal and interest payment, a statement
indicating any transactions in such holder's RediReserve Certificate account.
The Company maintains a register to record the owner of each outstanding
RediReserve Certificate, and may treat the person whose name is so recorded as
the owner of such RediReserve Certificate for all purposes. Ownership of a
RediReserve Certificate may be transferred on the register only by written
notice to the Company signed by the holder or his duly authorized representative
on a form to be supplied by the Company. (Article Three)
Denomination and Minimum Purchase: As of the date of this Prospectus, the
minimum initial purchase of a RediReserve Certificate is $1,000 and additional
purchases may be in any amount. From time to time, the Company may set other
minimum purchase amounts and minimum balance requirements (as described below)
for RediReserve Certificates.
Interest on RediReserve Certificate Accounts: The interest rate on all
outstanding RediReserve Certificates will be set by the Company each Tuesday (or
such other day as the Company may determine from time to time by Company Order)
and the interest rate paid on each outstanding RediReserve Certificate may vary
from week to week. As long as a holder maintains the applicable minimum balance
in his RediReserve Certificate account, the account will earn the weekly rate
which will be based on market conditions and the Company's financial
requirements. Investors may inquire concerning the rate then being paid on
outstanding RediReserve Certificates by writing or telephoning the Company.
Interest on each RediReserve Certificate account with a balance above the
minimum required (currently $1,000) accrues daily and is compounded quarterly on
March 31, June 30, September 30 and December 31 of each year. Interest accrued
during each quarterly period will not be paid by check, but rather will be added
to the principal balance of each holder's RediReserve Certificate account in the
form of additional RediReserve Certificates. Interest accrues on the principal
balance of each
8
<PAGE> 10
RediReserve Certificate through the date of redemption. If a holder redeems in
full all RediReserve Certificates held by him, the Company will pay all accrued
interest by check as soon as practicable after redemption.
Minimum Balance Requirement for RediReserve Certificate Accounts: No
interest shall be paid on any day the principal amount in a holder's RediReserve
Certificate account is less than the amount which may be designated from time to
time by the Company ($1,000 at the date of this Prospectus). The Company has the
right to increase or decrease the minimum principal amount which must be
maintained in a RediReserve Certificate account and such an increase or decrease
may be applied, at the Company's election, to RediReserve Certificates
outstanding as of the date of the increase or decrease as well as RediReserve
Certificates issued after such increase or decrease. The Company must give
holders of RediReserve Certificates at least 30 days advance written notice if
the Company elects to increase the minimum principal amount which must be
maintained in their RediReserve Certificate accounts.
Redemption at the Holder's Election: RediReserve Certificates may be
redeemed at any time in minimum amounts of $250 (or any amount if closing an
account), and will be paid in full upon demand by the holder, which demand is
received by the Company at its principal place of business or such other places
as may be designated by it for such purpose. The Company may delay redemption of
a newly purchased RediReserve Certificate for such time as may be necessary to
assure that it has received the full purchase price of such RediReserve
Certificate -- for example, until a check given to it in payment for the
RediReserve Certificate is collected.
The minimum amount for redemptions may be increased (after 30 days' notice)
or decreased by the Company from time to time.
Redemption by Draft: A holder may elect to make redemptions by draft
payable to the order of any payee in any amount of $250 or more. At the request
of a holder, the Company will provide drafts drawn on it that will be payable
through one of its subsidiary banks, or a successor bank. All authorized signers
on a RediReserve Certificate account must submit specimen signatures on a
signature card provided by the Company and must agree to abide by the Company's
rules and regulations pertaining to such accounts. As with regular bank checks,
certain banks may not provide cash at the time of deposit, but will wait until
they have received payment from the subsidiary bank. When a draft is presented
to the subsidiary bank for payment, the subsidiary bank, as agent of the holder,
will cause the Company to redeem a sufficient amount from the holder's
RediReserve Certificate account to cover the amount of the draft. Interest
continues to accrue on a RediReserve Certificate account until a draft is
presented to the subsidiary bank for payment. The subsidiary bank will return a
draft if the amount of collected funds in the holder's RediReserve Certificate
account is insufficient to cover the draft or if the signature(s) on the draft
is (are) not, in the judgment of the Company, the same as the specimen
signature(s) previously submitted to the Company. The Company reserves the right
to charge a fee for the dishonor of a draft or for a stop payment order.
Neither the Company nor the subsidiary bank will return canceled drafts to
the holders of RediReserve Certificate accounts, although the Company will, upon
request, provide a holder with copies of drafts designated by the holder upon
payment of a service charge. Holders of RediReserve Certificate accounts will
receive statements as described under "Form; Non-negotiability and Statements"
above, which will reflect draft transactions.
Redemption at the Company's Election: The Company may, at its election,
redeem RediReserve Certificates either as a whole or from time to time in part,
upon not less than 30 days' written notice to the holder, at the principal
amount thereof without premium, plus interest accrued to the date of redemption.
Accrued interest on RediReserve Certificates so redeemed will be paid as soon as
practicable.
9
<PAGE> 11
PROVISIONS RELATING TO NOTES
Form and Denominations: The Notes shall be uncertificated and evidenced by
book entry and a statement issued to each purchaser.
Statements issued by the Company are not negotiable instruments, and no
rights of ownership can be transferred by mere endorsement and delivery of a
statement. Ownership of a Note may be transferred on the Company register only
by written notice to the Company signed by the owner(s) or such owner's duly
authorized representative on a form to be supplied by the Company. (Section
3.05) The Notes may not be pledged, assigned or hypothecated (as collateral for
a loan or otherwise). The Notes may be purchased in minimum denominations to be
determined, from time to time, by the Company. Separate purchases may not be
accumulated to satisfy the minimum denomination requirements.
Interest: The interest rates payable on the Notes will be fixed by the
Company from time to time based on market conditions and the Company's financial
requirements. Once determined, the rate of interest payable on a Note will
remain fixed on such Note until it matures or is redeemed by the Noteholder.
Interest on 91 Day and Six Month Notes compounds daily and is paid only at
maturity. While interest on 18 Month, Two Year, 30 Month, and Three, Four, Five,
Seven and Ten Year Notes compounds daily, holders may elect to have interest
paid monthly, quarterly, semiannually, annually, or paid at maturity. This
election may be changed one time by the holder during the term of the Note.
Interest on One Year Notes compounds daily and holders may elect to have
interest paid monthly, quarterly, semiannually or at maturity. This election may
not be changed during the term of a One Year Note.
Automatic Extension: If the Company does not request redemption of a Note
at least seven days prior to maturity, or if a Note is not redeemed or converted
to another term by the Noteholder within seven days after maturity, a Note with
a principal amount of $2,500 or more will be extended automatically for a period
equal to the original term. Such Note, as renewed, will continue in all its
provisions, including provisions relating to payment, except that the interest
rate payable during any renewed term shall be the interest rate which is being
offered by the Company on similar Notes as of the renewal date. If similar Notes
are not then being offered, the Note will not renew, and, absent instructions
from the Noteholder selecting a Note with a term that is currently being
offered, the maturing Note will be redeemed. The Company will give each
Noteholder notice at least seven days prior to maturity reminding him of the
maturity. If the Company gives notice to a Noteholder of the Company's desire to
redeem a Note at maturity, no interest will accrue after the date of maturity.
Likewise, if a Noteholder submits a written request for redemption within seven
days after its maturity date, no interest will accrue after the date of
maturity. A Note with a principal amount that is less than $2,500 at maturity
will be redeemed automatically.
No Redemption by the Company: The Company has no right to redeem a Note
and the holder has no right to require the Company to redeem any such Note prior
to its maturity date as originally stated or as it may be extended, except as
indicated below.
Redemption by the Holder on Death or Disability: A Note may be redeemed at
the election of the original owner (if he is still the holder) following his
total permanent disability, or at the election of his estate following his
death, as established to the satisfaction of the Company. The redemption price,
in the event of such a death or disability, is the principal amount of the Note,
plus interest accrued and not previously paid, to the date of redemption. If two
or more persons are joint record owners of a Note, the election to redeem will
not apply until both record owners are either deceased or disabled, except that,
if the joint owners are husband and wife, the election may be made after the
death or total permanent disability of either spouse.
The Company may modify the foregoing policy on redemption after death or
disability. However, no such modification will affect the right of redemption
applicable to any Note which was purchased at
10
<PAGE> 12
a time when the then current prospectus of the Company stated the Company's
policy to redeem as indicated in the preceding paragraph.
Liquidity: It is not expected that there will be a trading market for the
Notes. Although Noteholders have no contractual right to redeem a Note prior to
maturity, the Company, in its sole discretion, may honor a written request for
early redemption. Should the Company elect to do so, the Company will impose a
penalty that is the higher of (a) 91 days' compound interest at the actual rate
of interest borne by the Note, plus an amount equal to the difference, if any,
between the interest earned on the Note, at the rate and on the terms stated
therein, and the interest that would have been earned on the Note at a rate of
5%, if 5% is lower than the rate borne by the Note; or (b) the rate currently
being offered by the Company (as of the redemption date) on a Note of the same
term as the Note being redeemed, less the actual interest rate borne by the Note
being redeemed, multiplied by the remaining term of the Note being redeemed on a
365 day basis. Under either calculation method, early redemption may result in a
loss of principal.
PROVISIONS RELATING TO ALL SECURITIES
Interest Accrual Date: Interest on the Securities accrues from the date of
purchase which is deemed to be the date the Company receives funds which are
received prior to 3:00 p.m. on a business day or the next business day if the
Company receives such funds on a non-business day or after 3:00 p.m. on a
business day. For this purpose, the Company's business days will be deemed to be
Monday through Friday, except for Pennsylvania legal holidays.
Interest Withholding: With respect to those investors who do not provide
the Company with a fully executed Form W-9, the Company will withhold 31% of any
interest paid.
Additional Interest: In addition to the interest rates payable as set
forth above, the Company may make such additional payments of interest, premiums
or other benefits ("Additional Interest") on such of the Securities, in such
amounts, in such form, on such terms and at such times as shall be determined
from time to time by the Company. Such Additional Interest payments may be
modified or discontinued at any time. For example, such Additional Interest
payments may be limited to new investors, or to current investors increasing or
renewing their investments in the Securities. Also, such Additional Interest
payments may be limited to current or new investors residing in one or more
states or localities where the Company is authorized to sell the Securities.
Aggregate Indebtedness: The amount of indebtedness which may be
outstanding under the Indenture at any one time is unlimited. There also is no
limitation on the respective amounts of each class of Securities which may be
outstanding at any one time.
Modification of Indenture: The Indenture may be modified by the Company
and the Trustee at any time or times with the consent of the holders of not less
than a majority in principal amount of the Securities then outstanding, but no
modification of the Indenture may be made which will affect the terms of payment
or the principal of any Security, without consent of the holder thereof, or
reduce the percentage of holders of Securities whose consent to modification is
required. The Company and the Trustee may enter into supplemental indentures
adding covenants or agreements of the Company for the protection of the holders
of Securities, or clarifying any ambiguity or correcting any defect in the
Indenture, consistent with its terms, or modifying provisions of the Indenture
provided that such modifications do not have a material adverse effect on the
interest of holders of outstanding Securities, without action by the holders of
Securities. (Article Nine)
Place and Method of Payment: Principal and interest upon the Securities
will be payable at the principal executive office of the Company, as it may be
established from time to time, or at such other place as the Company may
designate for that purpose; provided, however, that payments may be made at the
option of the Company by check mailed to the person entitled thereto at his
address appearing in the register which the Company maintains for that purpose.
(Sections 307 and 1002)
11
<PAGE> 13
Events of Default: An Event of Default is defined in the Indenture as
being any of the following: (i) default in payment of principal on any of the
Securities under the Indenture which has not been cured; (ii) a default for 30
days in payment of any installment of interest on a Security; or (iii) certain
events of bankruptcy, insolvency or reorganization or default in the performance
or breach of any covenant or warranty of the Company in the Indenture and
continuance of such default in performance or breach for a period of 60 days
after notice of such default has been received by the Company from the Trustee
or from the holders of 25% in principal amount of the outstanding Securities.
The Company is required to file annually with the Trustee an officer's
certificate as to the absence of certain defaults under the terms of the
Indenture. The Indenture provides that the holders of a majority in aggregate
principal amount of the applicable Securities at the time outstanding may, on
behalf of all holders, waive any past default except in payment of principal or
interest on the Securities and certain other specified covenants or provisions.
(Article Five)
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default shall occur and be continuing, the Trustee
is under no obligation to exercise any of its rights or powers under the
Indenture at the request, order or direction of any of the holders of
Securities, unless such holders of Securities shall have offered to the Trustee
reasonable indemnity. (Section 601) Subject to such provisions for the
indemnification of the Trustee, the holders of a majority in principal amount of
the Securities at the time outstanding have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
subject to specified limitations, or exercising any power conferred on the
Trustee. The Indenture contains certain limitations on the right of an
individual holders of Securities to institute legal proceedings in the event of
the Company's default. (Sections 507 and 512)
Certain Covenants: The Company has entered into certain covenants
including that it will not consolidate or merge with or into any other
corporation, unless the other corporation expressly assumes the obligations of
the Company under the Indenture. (Article Eight) The Indenture contains no
covenants or other provisions to afford protection to holders of Securities in
the event of a highly leveraged transaction or a change in the control of the
Company.
Concerning the Trustee: The Trustee may resign at any time, may be removed
by the holders of a majority of the principal amount of applicable outstanding
Securities, or upon the occurrence of certain contingencies (relating generally
to the insolvency of the Trustee or the Trustee's ineligibility to serve as such
under the Trust Indenture Act of 1939, as amended), may be removed by the
Company or by a court of competent jurisdiction upon petition of a holder of
Securities, but no such resignation or removal of the Trustee may become
effective until a successor Trustee has accepted the appointment as provided in
the Indenture. (Sections 607 and 608) The Company and its subsidiaries reserve
the right to enter into banking relationships with the Trustee and its
subsidiaries. CoreStates is also the trustee under the Prior Indenture. In the
event that a default arises under the Indenture or the Prior Indenture while
Securities remain outstanding under both such Indentures, CoreStates may be
obligated to resign as trustee under one of the Indentures.
Satisfaction and Discharge of Indenture: The Indenture may be discharged
upon the payment of all RediReserve Certificates and Notes outstanding
thereunder or upon deposit in trust of funds sufficient therefor, plus
compliance with certain formal procedures. (Article Four)
Reports: The Company publishes annual reports containing audited financial
statements and quarterly reports containing unaudited financial information for
the first three quarters of each fiscal year. Copies of such reports will be
sent to any holder of Securities upon oral or written request.
Service Charges: The Company reserves the right to assess service charges
for services such as changing the registration of any Security when such change
is occasioned by a change in name of the holder, or a transfer (whether by
operation of law or otherwise) of the Security by the holder to another person.
12
<PAGE> 14
The Company also reserves the right, upon 30 days' written notice to the
holder, to increase service charges currently imposed in connection with
redemptions by draft from RediReserve Certificate accounts and assess service
charges for: (i) a holder making more than a specified number of redemptions in
a specified period from a RediReserve Certificate account; and (ii) for certain
other services provided with respect to RediReserve Certificate accounts.
Additional Securities: The Company may offer from time to time, pursuant
to the Indenture, additional classes of securities with terms and conditions
different from the Securities offered hereby, (except that no such security
issued under the Indenture may be senior to the Securities offered hereby). The
Company will supplement this Prospectus if and when it decides to offer to the
public any additional class of Security.
Variations in Terms and Conditions: The Company reserves the right from
time to time to offer different Securities and to vary the terms and conditions
of the offer (including, but not limited to, minimum balance requirements for
RediReserve Certificates and minimum denominations, additional interest payments
and service charges for all Securities) depending upon the state or locality
where the purchaser resides, the purchaser's tenure as an investor with the
Company or whether an investor is increasing or renewing his/her investment in
the Company's securities. In addition, the Company may vary certain terms and
conditions of the RediReserve account and/or Notes for its employees and the
employees of its subsidiaries.
Compliance with Rule 14e-1:. Any purchase of Securities by the Company
will be accomplished in compliance with Section 14(e) of the Exchange Act and
Rule 14e-1 promulgated thereunder, if applicable.
LEGAL OPINION
Certain legal matters relating to the Securities offered hereby will be
passed upon for the Company by Gene S. Schneyer, Esquire, Vice President,
Secretary and General Counsel of the Company. Mr. Schneyer owns or has the right
to acquire a number of shares of Class A and Class B Common Stock of the Company
which is well below 1% of the outstanding common stock of the Company.
EXPERTS
The consolidated financial statements and schedules incorporated by
reference in this Prospectus and elsewhere in the registration statement to the
extent and for the periods indicated in their reports have been audited by
Arthur Andersen LLP, independent public accounts, and are incorporated herein in
reliance upon the authority of said firm as experts in giving said reports.
13
<PAGE> 15
(LOGO)PRINTED ON RECYCLED PAPER
-----------------------------------------
ADVANTA LOGO
Corp.
-----------------------------------------
PROSPECTUS
THE DATE OF THIS PROSPECTUS IS
, 1995
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration Fees......................................................... $ 61,387
Printing and Engraving.................................................... 5,000
Counsel fees.............................................................. 10,000
Accountants' fees and expenses............................................ 2,100
Blue Sky qualification fees and expenses.................................. 5,000
Indenture Trustee's fees and expenses..................................... 17,000
Miscellaneous............................................................. 513
--------
$101,000
========
</TABLE>
---------------
* Estimated, other than registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides, inter alia,
that under specified circumstances a corporation shall have the power to
indemnify any person who is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, against expenses, attorneys' fees, judgments, fines and
settlements. The By-Laws of the Company provide that the Company shall indemnify
any director, officer, employee or agent of the Company to the fullest extent
now or hereafter permitted by law in connection with any such action, suit or
proceeding. The ByLaws further provide that the Board of Directors of the
Company may, by resolution, indemnify any person other than a director, officer,
employee or agent of the Company for liabilities incurred in connection with
services rendered for or at the request of the Company or its subsidiaries. In
addition, consistent with Section 102 of the Delaware General Corporation Law,
the Company's Certificate of Incorporation limits the personal liability of the
Company's directors to the Company or its stockholders for monetary damages for
certain breaches of fiduciary duty. The Company maintains director and officer
liability insurance which would provide coverage against certain securities law
liabilities.
I-1
<PAGE> 17
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
3.1 Restated Certificate of Incorporation of the Registrant (incorporated by reference to
Exhibit 4.1 to Pre-Effective Amendment No. 1 to the Registrant's Registration
Statement on Form S-3 (File No. 33-53475), filed June 19, 1994).
3.2 By-Laws of the Registrant, as amended (incorporated by reference to Exhibit 3.11 to
the Registrant's Current Report on Form 8-K dated December 22, 1994, filed the same
date).
4.1 Form of Trust Indenture between Registrant and CoreStates Bank, N.A., as Trustee
(filed herewith).
5 Opinion and Consent of Gene S. Schneyer, Vice President, Secretary and General Counsel
(filed herewith).
12 Computation of Ratio of Earnings to Fixed Charges (filed herewith).
23.1 Consent of independent public accountants (filed herewith).
23.2 Consent of Gene S. Schneyer, Vice President, Secretary and General Counsel (included
in Exhibit 5).
24 Powers of Attorney (included on Signature Pages).
25 Form T-1, Statement of Eligibility and Qualification Under the Trust Indenture Act of
1933 of a Corporation Designated to Act as Trustee (filed herewith).
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
Post-Effective Amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of Securities offered (if the total
dollar value of Securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of Prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that the undertakings set forth in clauses (i) and (ii) of
this paragraph shall not apply if the information required to be included in
such post-effective amendments is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such Post-Effective Amendment shall be deemed
to be a new Registration Statement relating to the Securities offered
therein, and the offering of such Securities at that time shall be deemed
to be the initial bona fide offering thereof.
I-2
<PAGE> 18
(3) To remove from registration by means of a Post-Effective Amendment
any of the Securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such Securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or processing) 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 Act and will be governed by the final adjudication of
such issue.
I-3
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Horsham Township, Montgomery County, Commonwealth of
Pennsylvania, on September 12, 1995.
ADVANTA CORP.
By: /s/ RICHARD A. GREENAWALT
-----------------------------------
Richard A. Greenawalt, President,
Chief Operating Officer and Director
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned does hereby
constitute and appoint Dennis Alter, Richard A. Greenawalt, Alex W. Hart, John
J. Calamari, David D. Wesselink and Gene S. Schneyer, or any of them (with full
power to each of them to act alone), his or her true and lawful attorney-in-fact
and agent, with full power of substitution, for him or her and on his or her
behalf to sign, execute and file this Registration Statement and any or all
amendments (including, without limitation, post-effective amendments and any
amendment or amendments increasing the amount of securities for which
registration is being sought) to this Registration Statement, with all exhibits
and any and all documents required to be filed with respect thereto, with the
Securities and Exchange Commission or any regulatory authority, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises in order to effectuate the same as fully to all
intents and purposes as he or she might or could do if personally present,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
any of them, or their substitute or substitutes, may lawfully do or cause to be
done.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE DATE
--------- ----
<S> <C> <C>
/s/ DENNIS A. ALTER September 12, 1995
---------------------------------------------
Dennis Alter
Chairman of the Board and Director
/s/ ALEX W. HART September 12, 1995
---------------------------------------------
Alex W. Hart
Chief Executive Officer and Director
(Principal Executive Officer)
/s/ RICHARD A. GREENAWALT September 12, 1995
---------------------------------------------
Richard A. Greenawalt
President, Chief Operating
Officer and Director
/s/ DAVID D. WESSELINK September 12, 1995
---------------------------------------------
David D. Wesselink
Senior Vice President and Chief Financial
Officer (Principal Financial Officer)
</TABLE>
I-4
<PAGE> 20
<TABLE>
<CAPTION>
SIGNATURE DATE
--------- ----
<S> <C> <C>
/s/ JOHN J. CALAMARI September 12, 1995
---------------------------------------------
John J. Calamari
Vice President, Finance, and Chief Accounting
Officer (Principal Accounting Officer)
/s/ ARTHUR P. BELLIS September 12, 1995
---------------------------------------------
Arthur P. Bellis, Director
/s/ MAX BOTEL September 12, 1995
---------------------------------------------
Max Botel, Director
/s/ RICHARD J. BRAEMER September 12, 1995
---------------------------------------------
Richard J. Braemer, Director
/s/ ANTHONY P. BRENNER September 12, 1995
---------------------------------------------
Anthony P. Brenner, Director
/s/ WILLIAM C. DUNKELBERG September 12, 1995
---------------------------------------------
William C. Dunkelberg, Director
/s/ ROBERT C. HALL September 12, 1995
---------------------------------------------
Robert C. Hall, Director
/s/ WARREN KANTOR September 12, 1995
---------------------------------------------
Warren Kantor, Director
---------------------------------------------
Ronald J. Naples, Director
/s/ PHILLIP A. TURBERG September 12, 1995
---------------------------------------------
Phillip A. Turberg, Director
---------------------------------------------
James E. Ksansnak, Director
</TABLE>
I-5
<PAGE> 21
EXHIBIT INDEX
<TABLE>
<CAPTION>
ITEM
--------
<S> <C>
3.1 Restated Certificate of Incorporation of the Registrant (incorporated by reference
to Exhibit 4.1 to pre-Effective Amendment No. 1 to the Registrant's Registration
Statement on Form S-3 (File No. 33-53475), filed June 19, 1994).
3.2 By-Laws of the Registrant, as amended (incorporated by reference to Exhibit 3.11 to
the Registrant's Current Report on Form 8-K dated December 22, 1994, filed the same
date).
4.1 Form of Trust Indenture between Registrant and CoreStates Bank, N.A., as Trustee
(filed herewith).
5 Opinion and Consent of Gene S. Schneyer, Vice President, Secretary and General
Counsel (filed herewith).
12 Computation of Ratio of Earnings to Fixed Charges (filed herewith).
23.1 Consent of independent public accountants (filed herewith).
23.2 Consent of Gene S. Schneyer, Secretary and General Counsel (included in Exhibit 5).
24 Powers of Attorney (included on signature page).
25 Form T-1, Statement of Eligibility and Qualification Under the Trust Indenture Act
of 1933 of a Corporation Designated to Act as Trustee (filed herewith).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
================================================================================
Advanta Corp.,
Issuer
to
CoreStates Bank, N.A.,
Trustee
_______________
SENIOR INDENTURE
_______________
Dated as of , 1995
Debt Securities
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Independent Public Accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Legal Holiday . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security or Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register and Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
i<PAGE> 3
<TABLE>
<S> <C>
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Vice Chairman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 102. Compliance Certificates and Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 105. Notices, etc. to Trustee and Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 106. Notice to Holders of Securities; Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 107. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 108. Effect of Headings and Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 109. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 202. Form of Trustee's Certificate of Authentication. . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 303. Execution, Authentication, Delivery and Dating. . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 305. Registration, Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . . . . . . . . . . . . . . . . . . . 18
Section 307. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional
Amounts Preserved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 402. Application of Trust Money. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
</TABLE>
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<PAGE> 4
ARTICLE FIVE
REMEDIES
<TABLE>
<S> <C>
Section 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 502. Acceleration of Maturity; Rescission and Annulment. . . . . . . . . . . . . . . . . . . . . . . 25
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee. . . . . . . . . . . . . . . . 26
Section 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 505. Trustee May Enforce Claims without Possession of Securities. . . . . . . . . . . . . . . . . . 28
Section 506. Application of Money Collected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 507. Limitations on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 508. Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional
Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 510. Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 512. Control by Holders of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 514. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 602. Not Responsible for Recitals or Issuance of Securities. . . . . . . . . . . . . . . . . . . . . 33
Section 603. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 604. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 605. Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 606. Corporate Trustee Required; Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 607. Resignation and Removal; Appointment of Successor. . . . . . . . . . . . . . . . . . . . . . . 34
Section 608. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 609. Merger, Conversion, Consolidation or Succession to Business. . . . . . . . . . . . . . . . . . 37
Section 610. Appointment of Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . 40
Section 702. Preservation of Information; Communications to Holders. . . . . . . . . . . . . . . . . . . . . 40
</TABLE>
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<TABLE>
<S> <C>
Section 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 704. Reports by Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms. . . . . . . . . . . . . . . . . . . . . . 42
Section 802. Successor Person Substituted for Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . 43
Section 902. Supplemental Indentures with Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . . 44
Section 903. Execution of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 905. Reference in Securities to Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and any Premium, Interest and Additional Amounts. . . . . . . . . . . . . 46
Section 1002. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 1003. Money for Securities Payments to Be Held in Trust. . . . . . . . . . . . . . . . . . . . . . . 47
Section 1004. Additional Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 1005. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 1006. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 1007. Company Statement as to Compliance; Notice of Certain Defaults. . . . . . . . . . . . . . . . . 49
</TABLE>
iv
<PAGE> 6
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<TABLE>
<S> <C>
Section 1101. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 1102. Election to Redeem; Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 1103. Selection by Trustee of Securities to be Redeemed. . . . . . . . . . . . . . . . . . . . . . . 50
Section 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 1105. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 1106. Securities Payable on Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 1107. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 1202. Satisfaction of Sinking Fund Payments with Securities. . . . . . . . . . . . . . . . . . . . . 53
Section 1203. Redemption of Securities for Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1401. Purposes for Which Meetings May Be Called. . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 1402. Call, Notice and Place of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 1403. Persons Entitled to Vote at Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 1404. Quorum; Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings. . . . . . . . . . . . . . 56
Section 1406. Counting Votes and Recording Action of Meetings. . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1501. Indenture and Securities Solely Corporate Obligations. . . . . . . . . . . . . . . . . . . . . 58
</TABLE>
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<PAGE> 7
INDENTURE, dated as of ________, 1995 (the "Indenture"),
between Advanta Corp., a corporation duly organized and existing under the laws
of the State of Delaware (hereinafter called the "Company"), having its
principal executive office located at 650 Naamans Road, Claymont, Delaware
19703, and CoreStates Bank, N.A., a national banking association duly organized
and existing under the laws of the United States (hereinafter called the
"Trustee"), having its Corporate Trust Office located at 510 Walnut Street,
Philadelphia, PA 19106.
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of
this Indenture. All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required to
be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities as
follows:
<PAGE> 8
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of this
Indenture:
(1) the terms defined in this Article have the
meanings assigned to them in this Article, and include the plural as
well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein", "hereof", "hereto" and
"hereunder" and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other
subdivision.
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"Act", when used with respect to any Holders, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes imposed on
Holders specified therein and which are owing to such Holders.
"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 the meanings
correlative to the foregoing.
2
<PAGE> 9
"Authorized Newspaper" means a newspaper, in the English
language, customarily published on each day that is a Business Day in the place
of publication, whether or not published on days that are Legal Holidays in the
place of publication, and of general circulation in each place in connection
with which the term is used or in the financial community of each such place.
Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers
in the same city meeting the foregoing requirements and in each case on any day
that is a Business Day in the place of publication.
"Board of Directors" means the board of directors of the
Company or any committee of that board duly authorized to act generally or in
any particular respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other
location, means each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a Legal Holiday in such Place of Payment or other location.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934 or, if at any time after the execution of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"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" and "Company Order" mean, respectively, a
written request or order, as the case may be, signed in the name of the Company
by the Chairman of the Board of Directors, a Vice Chairman, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, the Secretary or an Assistant Secretary, of the
Company, 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
administered, which office at the date of original execution of this Indenture
is located at the address specified in the first paragraph of this instrument.
"Corporation" includes corporations and, except for purposes
of Article Eight, associations, companies and business trusts.
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"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to any Security issuable or
issued in the form of one or more global Securities, the Person designated as
Depository by the Company in or pursuant to this Indenture, which Person must
be, to the extent required by applicable law or regulation, a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and, if so
provided with respect to any Security, any successor to such Person.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations", with respect to any Security, means
direct obligations of the United States of America and agencies and
instrumentalities thereof, where the payment or payments thereunder are
supported by the full faith and credit of the United States of America and
which are not callable or redeemable at the option of the issuer or issuers
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of or other amount with respect to
any such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of or other amount with respect to the Government
Obligation evidenced by such depository receipt.
"Holder" means the Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and, with respect to
any Security, by the terms and provisions of such Security established pursuant
to Section 301 (as such terms and provisions may be amended pursuant to the
applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm
of accountants that, with respect to the Company and any other obligor under
the Securities, are independent public accountants within the meaning of the
Securities Act of 1933, as amended, and the rules and regulations promulgated
by the Commission thereunder, who may be the independent public accountants
regularly retained by the Company or who may be other independent public
accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
the Indenture or certificates required to be provided hereunder.
"interest", when used with respect to a Security which
provides for payment of Additional Amounts pursuant to Section 1004, includes
such Additional Amounts.
"Interest Payment Date", with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
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"Legal Holiday", with respect to any Place of Payment or other
location, means a Saturday, a Sunday or a day on which banking institutions or
trust companies in such Place of Payment or other location are not authorized
or obligated to be open.
"Maturity", with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise, and includes Redemption Date.
"Office or Agency", with respect to any Securities, means an
office or agency of the Company maintained or designated in a Place of Payment
for such Securities pursuant to Section 1002 or any other office or agency of
the Company maintained or designated for such Securities pursuant to Section
1002 or, to the extent designated or required by Section 1002 in lieu of such
office or agency, the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, that
complies with the requirements of Section 314(e) of the Trust Indenture Act and
is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company or other counsel who shall be
reasonably acceptable to the Trustee, that complies with the requirements of
Section 314(e) of the Trust Indenture Act.
"Outstanding", when used with respect to any Securities,
means, as of the date of determination, all such Securities theretofore issued
under this Indenture, except:
(i) any such Security theretofore canceled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(ii) any such Security or portions thereof for whose payment at the
Maturity thereof money in the necessary amount has been
theretofore deposited pursuant hereto 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
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(iii) any such Security in exchange for or in lieu of which other
Securities have been issued pursuant to this Indenture, unless
there shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a bona fide
purchaser in whose hands such Security is a valid obligation
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making any such determination or relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which shall have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee (A) the pledgee's right so to act with respect to such
Securities and (B) that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, or any premium or interest on, or any Additional Amounts
with respect to any Security on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the
place or places where the principal of, or any premium or interest on, or any
Additional Amounts with respect to such Security is payable as provided in or
pursuant to this Indenture.
"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 issued under Section 306 in exchange for or in lieu of
a lost, destroyed, mutilated or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed, mutilated or stolen Security.
"Redemption Date", with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price", with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to this Indenture.
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"Regular Record Date" for the interest payable on any Security
on any Interest Payment Date therefor means the date, if any, specified in or
pursuant to this Indenture as the "Regular Record Date".
"Responsible Officer" means an officer of the Trustee assigned
to the Corporate Trust Office, including any Vice President, any trust officer
or any other officer performing functions similar to those performed by the
persons who at the time shall be such officers, and any other officer of the
Trustee to whom a matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities,
as the case may be, authenticated and delivered under this Indenture; provided,
however, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities", with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive,
however, of Securities of any series as to which such Person is not Trustee;
and further provided, however, that if uncertificated Securities are issued the
"Security" or "Securities" means any Security or Securities, as the case may
be, registered in the Security Register.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on any Security means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", with respect to any Security or any
installment of principal thereof or interest thereon or any Additional Amounts
with respect thereto, means the date established by or pursuant to this
Indenture as the fixed date on which the principal of such Security or such
installment of principal or interest is or such Additional Amounts are due and
payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there
is more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of such series.
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"Vice Chairman", when used with respect to the Company or the
Trustee, means any vice chairman, whether or not designated by a number or a
word or words added before or after the title "Vice Chairman".
"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".
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 an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents or any of them is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon 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 or any Security, they may, but need not,
be consolidated and form one instrument.
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Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to 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 an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1406.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the
Trustee may determine; and the Trustee may in any instance require further
proof with respect to any of the matters referred to in this Section 104.
(c) The ownership and principal amount of Securities held by
any Person, and the date of the commencement and the date of the termination of
holding the same, shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders of any
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to),
by Board Resolutions, fix in advance a record date for the determination of
Holders of Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the
Holders of Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Securities shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future
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Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such 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 the Company shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Treasurer at
the address of its principal office specified in the first paragraph
of this instrument (with a copy to Five Horsham Business Center, 300
Welsh Road, Horsham, Pennsylvania 19004, Attention: Secretary) or at
any other address previously furnished in writing to the Trustee by
the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event, such notice shall be sufficiently given to Holders of Securities if
in writing and mailed, first-class postage prepaid, to each Holder of a
Security affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such Notice.
In any case where notice to Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security shall affect the sufficiency of
such notice with respect to other Holders of Securities given as provided
herein. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given or provided. In the case by
reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with
the
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Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture, or any Security 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 any Security, express or implied,
shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder and the Holders of
Securities, 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 Delaware applicable to
agreements made or instruments entered into and, in each case, performed in
said state.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Stated Maturity
or Maturity of any Security, shall be a Legal Holiday at any Place of Payment,
then (notwithstanding any other provision of this Indenture, or any Security
other than a provision in any Security that specifically states that such
provision shall apply in lieu of this Section 113) payment need not be made at
such Place of Payment on such date, but may be made on the next succeeding day
that is a Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or at the Stated Maturity or Maturity,
and no interest shall accrue on the amount payable on such date or at such time
for the
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period from and after such Interest Payment Date or Stated Maturity or
Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Security, issued pursuant to this Indenture shall be, (i)
in the case of certificated Securities, in the form established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto, shall
have such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by or pursuant to this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Security as
evidenced by their execution of such Security and (ii) in the case of
uncertificated Securities, established by or pursuant a Board Resolution
providing that such Securities shall fulfill all requirements of state law
wherever sold.
Unless otherwise provided in or pursuant to this Indenture,
certificated Securities shall be issuable in registered form without coupons.
In the case of certificated Securities, Definitive Securities
shall be printed, lithographed or engraved or produced by any combination of
these methods on a steel engraved border or steel engraved borders or may be
produced in any other manner, all as determined by the officers of the Company
executing such Securities, as evidenced by their execution of such Securities.
Section 202. Form of Trustee's Certificate of
Authentication.
In the case of certificated Securities, subject to Section
610, the Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series
designated herein referred to in the within-mentioned Indenture.
CoreStates Bank, N.A., as Trustee
By______________________________
Authorized Signer
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ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
issued under this Indenture is unlimited. The Securities may be issued in one or
more series.
With respect to any Securities to be (i) authenticated and
delivered hereunder in the case of certificated Securities or (ii) registered in
the Security Register in the case of uncertificated Securities, there shall be
established in or pursuant to a Board Resolution and set forth in a Company
Order, or established in one or more indentures supplemental hereto,
(1) the title of such Securities and the series in
which such Securities shall be included;
(2) any limit upon the aggregate principal amount of
the Securities of such title or the Securities of such series which may
be issued under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to Section 304, 305,
306, 905 or 1107 or the terms of such Securities);
(3) the date or dates, or the method or methods, if
any, by which such date or dates shall be determined, on which the
principal of such Securities is payable;
(4) the rate or rates at which such Securities shall
bear interest, if any, or the method or methods, if any, by which such
rate or rates are to be determined, the date or dates, if any, from
which such interest shall accrue or the method or methods, if any, by
which such date or dates are to be determined, the Interest Payment
Dates, if any, on which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on Securities on any
Interest Payment Date, the manner in which interest is to be paid,
whether and under what circumstances Additional Amounts on such
Securities or any of them shall be payable, and the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months; the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities may be surrendered
for registration of transfer, any of such Securities may be surrendered
for exchange and notices or demands to or upon the Company in respect
of such Securities and this Indenture may be served;
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(5) whether any of such Securities are to be
redeemable at the option of the Company and, if so, the period or
periods within which, the price or prices at which and the other terms
and conditions upon which such Securities may be redeemed, in whole or
in part, at the option of the Company;
(6) whether the Company is obligated to redeem or
purchase any of such Securities pursuant to any sinking fund or at the
option of any Holder thereof and, if so, the period or periods within
which, the price or prices at which and the other terms and conditions
upon which such Securities shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(7) the denominations in which any of such Securities
shall be issuable;
(8) any deletions from, modifications of or additions
to the Events of Default or covenants of the Company with respect to
any of such Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(9) if not the Trustee, the identity of each Paying
Agent or Authenticating Agent with respect to such Securities;
(10) if not the Company, the identity of each
Security Registrar with respect to such Securities;
(11) whether such Securities shall be automatically
extended, and if so, the period or periods within which notice may be
given that such extension should not occur automatically, and the terms
of any such extended Security;
(12) whether the Securities will be certificated or
uncertificated;
(13) provisions relating to seniority; and
(14) any other terms of such Securities (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and the rate or rates of interest, if any,
and Maturity, the date from which interest, if any, shall accrue and except as
may otherwise be provided by the Company in or pursuant to the Board Resolution
and set forth in the Company Order or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. All Securities of
any one series need not be issued at the same time and, unless otherwise so
provided by the Company, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
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If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Company Order setting forth the terms of such series.
Section 302. Denominations.
Unless otherwise provided in or pursuant to this Indenture,
Securities shall be issuable in registered form without coupons in such minimum
denominations as may be determined from time to time by Company Order.
Section 303. Execution, Authentication, Delivery and
Dating.
Securities in certificated form shall be executed on behalf of
the Company by its Chairman of the Board, one of its Vice Chairmen, its
President, its Treasurer or one of its Vice Presidents under its corporate seal
reproduced thereon and 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 to the Trustee (i) with
respect to Securities in certificated form, the certificates representing such
Securities for authentication, together with the Board Resolution and Officers'
Certificate or supplemental indenture with respect to such Securities referred
to in Section 301 and a Company Order for the authentication and delivery of
such Securities, and the Trustee in accordance with the Company Order and
subject to the provisions hereof shall authenticate and deliver such Securities
and (ii) with respect to Securities in uncertificated form, the Board Resolution
and Officers' Certificate or supplemental indenture with respect to such
Securities referred to in Section 301. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Article Six hereof) shall be fully protected in relying upon an Opinion of
Counsel substantially to the effect that:
(a) the form or forms and terms of such Securities
have been established in conformity with the provisions of this
Indenture;
(b) all conditions precedent to the authentication
and delivery of such Securities have been complied with and that such
Securities when completed by appropriate insertion and executed and
delivered by the Company to the Trustee for authentication pursuant to
this Indenture, and authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in
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such Opinion of Counsel, will constitute legally valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
affecting the enforcement of creditors' rights generally, and subject
to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law);
(c) all laws and requirements in respect of the
execution and delivery by the Company of such Securities have been
complied with; and
(d) as to such other matters as the Trustee may
reasonably request.
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such opinion
and certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to cause
an Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each certificated Security shall be dated the date of its
authentication.
No certificated 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 in Section 202 or 610 executed by or on behalf of the Trustee
by the manual signature of one of its authorized officers or by an
Authenticating Agent. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder.
Section 304. Temporary Securities.
Pending the preparation of definitive certificated Securities,
the Company may execute and deliver to the Trustee and, upon Company Order, the
Trustee shall authenticate and deliver, in the manner provided in Section 303,
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temporary Securities in lieu thereof which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form,
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities are issued, the Company shall cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive
Securities of the same series and containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities shall
be exchangeable for such definitive Securities upon surrender of such temporary
Securities at an Office or Agency for such Securities, without charge to any
Holder thereof. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations of the same series and containing identical terms and
provisions. Unless otherwise provided in or pursuant to this Indenture with
respect to a temporary global Security, until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Securities of each series the Company
shall cause to be kept a register (each such register being herein sometimes
referred to as the "Security Register") at an Office or Agency for such series
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of the Securities of such series and
of transfers of the Securities of such series. At such times as the Trustee
shall not be the Security Registrar, it shall have the right to examine the
Security Register at all reasonable times. The Company is hereby initially
appointed as Security Registrar for each series of Securities.
Upon surrender for registration of transfer of any
certificated Security of any series at any Office or Agency for such series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, certificated Securities of any
series may be exchanged for other Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any certificated Securities are
so
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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 entitling the Holders thereof to the same benefits under this
Indenture as the Securities surrendered upon such registration of transfer or
exchange.
Every certificated Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar for such Security) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar for such Security duly executed by the Holder
thereof or his attorney duly authorized in writing.
The Company reserves the right to assess a service charge for
any registration of transfer or exchange, or redemption of Securities, and the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
304, 905 or 1107 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture,
the Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of business 15
days before the day of the selection for redemption of Securities of like tenor
and the same series under Section 1103 and ending at the close of business on
the day of the mailing of the relevant notice of redemption, or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except in the case of any Security to be redeemed in part, the portion
thereof not to be redeemed, or (iii) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the Trustee,
subject to the provisions of this Section 306, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series containing identical terms and of like principal amount and
bearing a number not contemporaneously outstanding.
If there be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, 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 the Company's request
the Trustee
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shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security a new Security of the same series
containing identical terms and of like principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing provisions of this Section 306,
in case any 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 306,
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 a separate 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 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 and Certain Additional
Amounts; Rights to Interest and Certain
Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture,
any interest on and any Additional Amounts with respect to any Security which
shall be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name such Security (or one or
more Predecessor Securities) is registered as of the close of business on the
Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture,
any interest on and any Additional Amounts with respect to any Security which
shall be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Security (herein called "Defaulted Interest")
shall forthwith cease to be payable to the Holder thereof on the relevant
Regular Record Date by virtue of having been such Holder; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Person in whose name such Security (or a
Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the
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Trustee in writing of the amount of Defaulted Interest proposed to be
paid on such Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this
Clause provided. Thereupon, the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to the Holder of such Security (or
a Predecessor Security thereof) at his address as it appears in the
Security Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the
expense of the Company cause a similar notice to be published at least
once in an Authorized Newspaper of general circulation in the City of
Philadelphia, Pennsylvania, but such publication shall not be a
condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such
Security (or a Predecessor Security thereof) shall be registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Security may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
At the option of the Company, interest on Securities that bear
interest may be paid by mailing a check to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Subject to the foregoing provisions of this Section 307 and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 308. Persons Deemed Owners.
Prior to (i) due presentment of a certificated Security for
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registration of transfer and (ii) acceptance of duly authorized written
induction to transfer an uncertificated Security, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Security is registered in the Security Register as the owner of such Security
for all purposes including without limitation for the purpose of receiving
payment of principal of, any premium and (subject to Sections 305 and 307)
interest on and any Additional Amounts with respect to such Security and for all
other purposes whatsoever, whether or not any payment with respect to such
Security shall be overdue, and neither the Company, nor the Trustee or any agent
of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security
held on its behalf by a Depository shall have any rights under this Indenture
with respect to such global Security, and such Depository may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Section 309. Cancellation.
All certificated Securities surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities, as well as Securities
surrendered directly to the Trustee for any such purpose, shall be canceled
promptly by the Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be canceled promptly by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by or pursuant to this Indenture.
All canceled Securities held by the Trustee shall be destroyed by the Trustee,
unless by a Company Order the Company directs their return to it in a timely
manner.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
Upon the direction of the Company by a Company Order, this
Indenture shall 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 any right to receive Additional Amounts), and the Trustee, on receipt of
a
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Company Order, 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 Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) if redeemable at the option of
the Company, are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose, money and/or Government
Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms,
without consideration of any reinstatement thereof, will
provide not later than the opening of business on the due
dates of any payment of principal and any premium, interest
and Additional Amounts with respect thereto, or a combination
thereof, money in an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and any Additional
Amounts with respect to such Securities, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Maturity thereof, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company;
(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
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of this Indenture have been complied with; and
(4) the Company has delivered to the Trustee a
certificate of Independent Public Accountants certifying as to the
sufficiency of the amounts deposited pursuant to subclause (B) of
Clause (1) of this Section 401 for payment of the principal and any
premium, interest and Additional Amounts with respect thereto on the
dates such payments are due.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of all series as to which it is Trustee and if the other
conditions thereto are met. In the event there are two or more Trustees
hereunder, then the effectiveness of any such instrument shall be conditioned
upon receipt of each such instrument from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 605, the
obligations of the Trustee to any Authenticating Agent under Section 610 and, if
money and/or Government Obligations 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.
In the event that, subsequent to the date a discharge is
effected pursuant to this Section 401, Additional Amounts in excess of those
established as of the date such discharge is effected become payable in respect
of any Securities, in order to preserve the benefits of the discharge
established hereunder, the Company shall deposit or cause to be deposited in
accordance with provisions of this Section 401, within ten business days prior
to the earlier to occur of (i) one year after the existence of such excess
Additional Amounts is established and (ii) the date the first payment in respect
of any portion of such excess Additional Amounts becomes due, such additional
funds as are necessary to satisfy the provisions of this Section 401 as if a
discharge were being effected as of the date of such subsequent deposit. For
purposes of this paragraph, the existence of excess Additional Amounts shall be
deemed to have been established as of the date the governmental authority
imposing the tax, assessment or other governmental charge resulting in the
Additional Amounts first publishes the legislation, regulation or other
enactment adopting such tax, assessment or other governmental charge. Failure to
comply with the requirements of this paragraph shall result in the termination
of the benefits of the discharge established by this Section 401.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations deposited with the Trustee pursuant
to Section 401 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,
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premium, interest and Additional Amounts for whose payment such money has or
Government Obligations have been deposited with or received by the Trustee; but
such money and Government Obligations need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or be
effected by operation of law pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest on or any
Additional Amounts payable in respect of any Security of such series
when such interest becomes or such Additional Amounts become due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of and
any premium on any Security of such series when it becomes due and
payable at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture or the Securities
(other than a covenant or warranty a default in the performance or the
breach of which is elsewhere in this Section specifically dealt with or
which has been expressly included in this Indenture solely for the
benefit of a series of Securities other than such series), and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of such
series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having competent
jurisdiction of:
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(a) a decree or order for relief in respect
of the Company in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other
similar law and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company
to be insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the
Company and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(c) a final and non-appealable order
appointing a custodian, receiver, liquidator, assignee,
trustee or other similar official of the Company or of any
substantial part of the property of the Company, as the case
may be, or ordering the winding up or liquidation of the
affairs of the Company; or
(6) the commencement by the Company of a voluntary
proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law or of a voluntary proceeding seeking to be
adjudicated insolvent or the consent by the Company to the entry of a
decree or order for relief in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any insolvency proceedings against it, or the
filing by the Company of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by
the Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee or similar official of the Company or any substantial part of
the property of the Company or the making by the Company of an
assignment for the benefit of creditors, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default provided in or
pursuant to this Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of such series may declare the principal of all the Securities of such series,
or such lesser amount as may be provided for in the Securities of such series,
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for
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payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the
Trustee a sum of money sufficient to pay
(A) all overdue installments of any interest
on and any Additional Amounts with respect to all Securities
of such series,
(B) the principal of and any premium on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates borne by or provided for in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue installments of any
interest and Additional Amounts at the rate or rates borne by
or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities
of such series, other than the non-payment of the principal of, any
premium and interest on, and any Additional Amounts with respect to
Securities of such series which shall have become due solely by such
declaration of acceleration, shall have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment
of interest on or any Additional Amounts with respect to any Security
when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of or any premium on any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount of money then due
and
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payable with respect to such Securities with interest upon the overdue
principal, any premium and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest and Additional
Amounts at the rate or rates borne by or provided for in such Securities, and,
in addition thereto, such further amount of money as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay the money it is required to pay
the Trustee pursuant to the preceding paragraph forthwith upon the demand of the
Trustee, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the money so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and 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
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or such Securities or
in aid of the exercise of any power granted herein or therein, or to enforce any
other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole
amount, or such lesser amount as may be provided for in the
Securities of such series, of the principal and any premium,
interest and Additional Amounts owing and unpaid in respect of
the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of
Securities allowed in such judicial proceeding, and
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(ii) to collect and receive any monies or
other property payable or deliverable on any such claims and
to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 605.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security 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 of a Security in any
such proceeding.
Section 505. Trustee May Enforce Claims without
Possession of Securities.
All rights of action and claims under this Indenture or any of
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 or
judgment, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
shall be for the ratable benefit of each and every Holder of a Security in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
or any premium, interest or Additional Amounts, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 605;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities for principal and any premium, interest and
Additional Amounts in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the aggregate amounts due and payable on such
Securities for principal and any premium, interest and Additional
Amounts, respectively;
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THIRD: The balance, if any, to the Person or Persons
entitled thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding Securities
of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal and any Premium, Interest and
Additional Amounts.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 305 and 307) interest on, and any Additional Amounts with respect to
such Security, on the respective Stated Maturity or Maturities therefor
specified in such Security (or, in the case of redemption, on the Redemption
Date or, in the case of repayment at the option of such Holder if provided in or
pursuant to this
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Indenture, on the date such repayment is due) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies.
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 each and every Holder of a Security is intended to be
exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not 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 any Holder of a Security may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
such Holder, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture or with the Securities of any
series,
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(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction,
and
(3) such direction is not unduly prejudicial to the
rights of the other Holders of Securities of such series not joining in
such action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series may waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of, any premium
or interest on, or any Additional Amounts with respect to any Security
of such series, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully
do so) it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company expressly waives
(to the extent that it may lawfully do so) all benefit or advantage of any such
law and covenant 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 Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust
Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or
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refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or a
Company Order (in each case, other than delivery of any Security to the
Trustee for authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any resolution
of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(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 shall 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
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 or pursuant to
this Indenture at the request or direction of any of the Holders of
Securities of any series 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, coupon or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours
and upon reasonable notice, the books, records and premises of the
Company, personally or by agent or attorney; and
(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.
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Section 602. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, shall be taken as the statements of
the Company and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility and Qualification
on Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of the
Securities or the proceeds thereof.
Section 603. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other Person that may be an agent of the Trustee or
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
Section 604. Money Held in Trust.
Except as provided in Section 402 and Section 1003, money held
by the Trustee in trust hereunder need not be segregated from other funds except
to the extent required by law and shall be held uninvested. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 605. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by the Trustee
hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's negligence or bad faith; and
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(3) to indemnify the Trustee and its agents for, and
to hold them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section 605, the Trustee shall have a lien prior to the
Securities of any series upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of, and
premium or interest on or any Additional Amounts with respect to Securities.
Section 606. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that
is a Corporation permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $50,000,000. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 606, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 607. 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 pursuant to Section 608.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 608 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
the obligations imposed upon it under Section 310(b) of the
Trust
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Indenture Act with respect to Securities of any series after
written request therefor by the Company or any Holder of a
Security of such series who has been a bona fide Holder of a
Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 606 and shall fail to resign after written
request therefor by the Company or 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 or pursuant to a Board
Resolution, may remove the Trustee with respect to all Securities or
the Securities of such series, or (ii) subject to Section 315(e) of the
Trust Indenture Act, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect
to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(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 Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section
608. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 608, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 608, any Holder of a
Security who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with
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respect to the Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Securities, of
such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 608. Acceptance of Appointment by Successor.
(a) Upon the appointment hereunder of any successor
Trustee with respect to all Securities, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties hereunder of the retiring Trustee; but, on the
request of the Company or such successor Trustee, such retiring
Trustee, upon payment of its charges, shall execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and, subject to Section 1003,
shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 605.
(b) Upon the appointment hereunder of any successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and such successor Trustee
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, such successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and
that no Trustee shall be responsible for any notice given to, or
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received by, or any act or failure to act on the part of any other
Trustee hereunder, and, upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein, such
retiring Trustee shall have no further responsibility for the exercise
of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates other than as hereinafter expressly set
forth, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or such successor Trustee, such
retiring Trustee, upon payment of its charges with respect to the
Securities of that or those series to which the appointment of such
successor relates and subject to Section 1003 shall duly assign,
transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any Person appointed hereunder as
a successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section 608, as the case may be.
(d) No Person shall accept its appointment hereunder
as a successor Trustee unless at the time of such acceptance such
successor Person shall be qualified and eligible under this Article.
Section 609. Merger, Conversion, Consolidation or
Succession to Business.
Any Corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any Corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 610. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents
acceptable to the Company with respect to one or more series of Securities which
shall be
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authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company
and, except as provided in or pursuant to this Indenture, shall at all times be
a corporation that would be permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, is
authorized under applicable law and by its charter to act as an Authenticating
Agent and has a combined capital and surplus (computed in accordance with
Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 610, it shall resign immediately in the manner and
with the effect specified in this Section 610.
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
be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section 610, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent shall
serve, as their names and addresses appear in the Security 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 610.
The Company agrees to pay each Authenticating Agent from time
to time reasonable compensation for its services under this Section 610. If the
Trustee
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makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 605.
The provisions of Sections 308, 602 and 603 shall be
applicable to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or
more series of Securities pursuant to this Section 610, the Securities of such
series may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in the
following form:
This is one of the Securities of the series
designated herein referred to in the within-mentioned Indenture.
CoreStates Bank, N.A., As Trustee
By______________________________
As Authenticating Agent
By______________________________
Authorized Signatory
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need
not be accompanied by or contained in an Officers' Certificate by the Company),
shall appoint in accordance with this Section 610 an Authenticating Agent having
an office in a Place of Payment designated by the Company with respect to such
series of Securities.
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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.
In accordance with Section 312(a) of the Trust Indenture Act,
the Company shall furnish or cause to be furnished to the Trustee
(a) semi-annually with respect to Securities of each
series on April 30 and October 31 of each year or upon such other dates
as are set forth in or pursuant to the Board Resolution or indenture
supplemental hereto authorizing such series, a list, in each case in
such form as the Trustee may reasonably require, of the names and
addresses of Holders as of the applicable date, and
(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,
provided, however, that such times as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 702. Preservation of Information; Communications
to Holders.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company, the Trustee,
any Paying Agent or any Security Registrar shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after July 31 of each year commencing with
the first July 31 following the first issuance of Securities pursuant to Section
301, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, in accordance with Section 313 of the Trust Indenture Act, a brief
report dated as of such July 31 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding September 15 and the date of this Indenture.
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(b) The Trustee shall transmit the reports required by Section
313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Company
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports with
respect to compliance by the Company, as the case may be, with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section 704 as may be required by rules
and regulations prescribed from time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on
Certain Terms.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company with or into
any other Person or Persons (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of the property of the Company as an entirety or substantially
as an entirety, to any other Person (whether or not affiliated with the
Company); provided, however, that:
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, the entity
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a Corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and
shall expressly assume, by an indenture (or indentures, if at such time
there is more than one Trustee) supplemental hereto, executed by the
successor Person and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of, any
premium and interest on and any Additional Amounts with respect to all
the Securities and the performance of every other covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such
transaction, no event which, after notice or lapse of time, would
become an Event of Default, shall have occurred and be continuing;
(3) either the Company or the successor Person shall
have delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
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Section 802. Successor Person Substituted for Company.
Upon any consolidation or merger or any conveyance, transfer
or lease of the properties and assets of the Company substantially as an
entirety to any Person in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein; and thereafter, except in the case of a lease to another Person, the
predecessor Person shall be released from all obligations and covenants under
this Indenture, and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders of Securities, the Company
(when authorized by or pursuant to a Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company, and the assumption by any such successor of the covenants
of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (as shall be
specified in such supplemental indenture or indentures) or to surrender
any right or power herein conferred upon the Company; or
(3) to facilitate the issuance of Securities in
uncertificated form, provided any such action shall not adversely
affect the interests of the Holders of Securities of any series in any
material respect; or
(4) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 608; or
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(6) to cure any ambiguity or to correct or supplement
any provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as herein
set forth; or
(8) to add any additional Events of Default with
respect to all or any series of Securities (as shall be specified in
such supplemental indenture); or
(9) to secure the Securities pursuant to Section 1006
or otherwise; or
(10) to amend or supplement any provision contained
herein or in any supplemental indenture, provided that no such
amendment or supplement shall materially adversely affect the interests
of the Holders of any Securities then Outstanding.
Section 902. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company's Board
Resolution), and the Trustee may enter into one or more indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture, without the
consent of the Holder of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of,
or any premium or installment of interest on or any Additional Amounts
with respect to, any Security, or reduce the principal amount thereof
or the rate of interest thereon or any Additional Amounts with respect
thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Company to pay Additional
Amounts pursuant to Section 1004 (except as contemplated by Section
801(1) and permitted by Section 901(1)), or adversely affect the right
of repayment at the option of any Holder as contemplated by Article
Thirteen, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date or, in the case of
repayment at the option of the Holder, on or after the date for
repayment), or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1404 for quorum or voting, or
(3) modify any of the provisions of this Section 902,
or 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 Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which shall have been included
expressly and solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders of Securities
under this Section 902 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Article Six hereof) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of a Security theretofore or thereafter issued hereunder shall be
bound thereby.
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Section 905. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and any Premium,
Interest and Additional Amounts.
The Company covenants and agrees for the benefit of the
Holders of the Securities of each series that it will duly and punctually pay
the principal of, any premium and interest on and any Additional Amounts with
respect to the Securities of such series in accordance with the terms thereof
and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any
series of Securities an Office or Agency where Securities of such series may be
presented or surrendered for payment, where Securities of such series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served.
The Company may also from time to time designate one or more
other Offices or Agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an Office or Agency in each Place of Payment for Securities of any series for
such purposes. The Company shall give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
The City of Horsham, and initially appoints its offices in the City of Horsham,
Pennsylvania as the Office or Agency for such purpose. Pursuant to Section
301(9) of this Indenture, the Company may subsequently appoint a place or places
in The City of Philadelphia or its immediate vicinity where such Securities may
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be payable.
Section 1003. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it shall, on or before each due date
of the principal of, any premium or interest on or Additional Amounts with
respect to any of the Securities of such series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum of money sufficient to pay the
principal or any premium, interest or Additional Amounts so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it shall, on or prior to each due date of the
principal of, any premium or interest on or any Additional Amounts with respect
to any Securities of such series, deposit with any Paying Agent a sum of money
sufficient to pay the principal or any premium, interest or Additional Amounts
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of, any premium or interest on or any Additional Amounts with
respect to Securities of such series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of such series) in
the making of any payment of principal, any premium or interest on or
any Additional Amounts with respect to the Securities of such series;
and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
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such money.
Except as otherwise provided herein or pursuant hereto, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, any premium or interest
on or any Additional Amounts with respect to any Security of any series and
remaining unclaimed for two years after such principal or any such premium or
interest or any such Additional Amounts shall have become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security 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 an Authorized Newspaper in
each Place of Payment for such series or to be mailed to Holders of Securities
of such series, or both, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing nor shall it be later than two years after
such principal and any premium or interest or Additional Amounts shall have
become due and payable, any unclaimed balance of such money then remaining will
be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of
Additional Amounts, the Company agrees to pay to the Holder of any such Security
Additional Amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
by the terms of such series established hereby or pursuant hereto to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise provided in or pursuant to this Indenture,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to such
series of Securities (or if the Securities of such series shall not bear
interest prior to Maturity, the first day on which a payment of principal is
made), and at least 10 days prior to each date of payment of principal or
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officers' Certificate, the Company shall furnish to the
Trustee and the principal Paying Agent or Paying Agents, if other than the
Trustee, an Officers' Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal of or interest on the
Securities of such series shall be
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made to Holders of Securities of such series who are United States Aliens
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of such series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities, and the Company agrees to pay to the Trustee or such
Paying Agent the Additional Amounts required by the terms of such Securities.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense (including reasonable
fees and expenses) reasonably incurred without negligence or bad faith on their
part arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this Section
1004.
Section 1005. Corporate 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
corporate existence and its 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 its business and that the loss thereof
is not disadvantageous in any material respect to the Holders.
Section 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 1002, 1004, 1006 or 1007
with respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series, by Act of such Holders, either shall
waive such compliance in such instance or generally shall have waived compliance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
Section 1007. Company Statement as to Compliance; Notice
of Certain Defaults.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, stating that
(1) a review of the activities of the Company during
such year and of its performance under this Indenture has been made
under his or her supervision, and
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(2) to the best of his or her knowledge, based on
such review, (A) the Company has complied with all the conditions and
covenants imposed on it under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such condition or
covenant, specifying each such default known to him or her and the
nature and status thereof, and (B) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
(b) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after notice or
lapse of time or both would become an Event of Default pursuant to clause (4) of
Section 501.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the
Company as permitted or required by the terms of such Securities shall be made
in accordance with the terms of this Article, except as otherwise permitted or
required by the terms of such Securities.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of the Securities of any series, with the same issue
date, interest rate, Stated Maturity and other terms, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed.
Section 1103. Selection by Trustee of Securities to be
Redeemed.
If less than all the Securities of any series with the same
issue date, interest rate, Stated Maturity and other terms are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount of Securities of such series;
provided, however, that no such partial redemption shall reduce the portion of
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the principal amount of a Security of such series not redeemed to less than the
minimum denomination for a Security of such series established herein or
pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal of such Securities which has been or is to
be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
the Holders of Securities to be redeemed. Failure to give notice by mailing in
the manner herein provided to the Holder of any Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any certificated Security is to be
redeemed in part only, the notice which relates to such Security shall
state that on and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without charge, a
new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption
Price shall become due and payable upon each such Security or portion
thereof to be redeemed, and, if applicable, that interest thereon shall
cease to accrue
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on and after said date,
(6) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and any accrued
interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if
such is the case,
(8) the CUSIP number, if any (or any other numbers
used by a Depository to identify such Securities).
A notice of redemption published as contemplated by Section
106 need not identify particular Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on and
Additional Amounts with respect thereto, all the Securities or portions thereof
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with any
accrued interest and Additional Amounts to the Redemption Date; provided,
however, that installments of interest on Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the Regular Record Dates therefor according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium, until
paid, shall bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
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Section 1107. Securities Redeemed in Part.
Any certificated Security which is to be redeemed only in part
shall be surrendered at any Office or Agency for such Security (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
permitted or required by the terms of such Securities.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of such series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any series to be made
pursuant to the terms of such Securities (1) deliver Outstanding Securities of
such series (other than any of such Securities previously called for redemption
or any of such Securities in respect of which cash shall have been released to
the Company), and (2) apply as a credit Securities of such series which have
been redeemed either at the election of the Company pursuant to the terms of
such series of Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, provided that
such series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption
Price
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specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
If as a result of the delivery or credit of Securities of any series in lieu of
cash payments pursuant to this Section 1202, the principal amount of Securities
of such series to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000, the Trustee need not call Securities of such series
for redemption, except upon Company Request, and such cash payment shall be held
by the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall at the
request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested to be
released to the Company.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any series of Securities (unless a shorter notice shall be satisfactory to
the Trustee), the Company shall deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting of Securities of that
series pursuant to Section 1202, and the optional amount, if any, to be added in
cash to the next ensuing mandatory sinking fund payment, and will also deliver
to the Trustee any Securities to be so credited and not theretofore delivered.
If such Officers' Certificate shall specify an optional amount to be added in
cash to the next ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified. Not less than 40
days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
not less than 30 nor more than 40 days prior to the sinking fund payment date in
the name of and at the expense of the Company in the manner provided in Section
1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of
the Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of
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Securities before their Stated Maturity, for purposes of Section 309, shall not,
in the case of certificated Securities, operate as a payment, redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be canceled.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in The City of Philadelphia as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1401, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in The City of Philadelphia and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section 1402.
Section 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such
55
<PAGE> 62
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1402(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
1404 shall be binding on all the Holders of Securities of such series, whether
or not such Holders were present or represented at the meeting.
Section 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to
56
<PAGE> 63
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1406. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and account numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each
57
<PAGE> 64
copy shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one such copy shall be delivered to the
Company, and another to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1501. Indenture and Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or premium, if
any, or interest or Additional Amounts on any Security, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or in any
supplemental indenture or, in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of the Securities.
* * * * *
58
<PAGE> 65
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
[SEAL] Advanta Corp.
Attest:
______________________________ By_________________________________________
Name:
Title:
[SEAL] CoreStates Bank, N.A., as Trustee
Attest:
______________________________ By_________________________________________
Name:
Title:
59
<PAGE> 66
STATE OF ____________ )
SS.:
COUNTY OF __________ )
On the _____ day of ________________, 1995, before me
personally came _______________, to me known, who, being by me duly sworn, did
depose and say that he is a _____________ of Advanta Corp., a Delaware
corporation, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said Corporation; that the seal affixed to
said instrument is such Corporation's 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.
____________________________
Notary Public
[NOTARIAL SEAL]
60
<PAGE> 67
STATE OF ____________ )
SS.:
COUNTY OF __________ )
On the _____ day of ________________, 1995, before me
personally came _______________, to me known, who, being by me duly sworn, did
depose and say that he is a _____________ of CoreStates Bank, N.A., a national
banking association organized and existing under the laws of the United States,
one of the persons described in and who executed the foregoing instrument; that
he knows the seal of said Corporation; that the seal affixed to said instrument
is such Corporation's 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.
___________________________
Notary Public
[NOTARIAL SEAL]
61
<PAGE> 1
EXHIBIT 5
September 12, 1995
Advanta Corp.
Five Horsham Business Center
300 Welsh Road
Horsham, PA 19044
RE: SECURITIES AND EXCHANGE COMMISSION -
REGISTRATION STATEMENT ON FORM S-3
------------------------------------
Ladies and Gentlemen:
I am Vice President, Secretary and General Counsel of Advanta Corp. (the
"Company"), and have acted as counsel for the Company in connection with the
filing of a Registration Statement on Form S-3 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act"), relating to the sale
of the securities described below. I am familiar with the requirements of the
Act and the rules and regulations promulgated pursuant thereto. I have
examined the Company's Restated Certificate of Incorporation, the Company's
By-Laws and such other corporate records and documents of the Company as I have
deemed necessary or advisable in connection with rendering this opinion.
Based on the foregoing, it is my opinion that (a) appropriate corporate action
has been taken to authorize the sale and issuance of the securities described
in the Prospectus included in the Registration Statement, namely a total of
$200,000,000 (including $21,979,000 of unsold securities from Registration
Statement No. 33-61555 which became effective on August 24, 1995) of principal
amount of RediReserve Variable Rate Certificates, 91 Day, Six, 18 and 30 Month
and One, Two, Three, Four, Five, Seven and Ten Year Notes, all of which are
uncertificated (hereinafter referred to collectively as the "Securities"), and
(b) when issued pursuant to either the Trust Indenture in the form filed
as Exhibit 4.1 to the Registration Statement, with such modifications as the
executing officer shall approve, or the Trust Indenture dated April 22, 1981
between the Company and a predecessor of CoreStates Bank, N.A.,
such Securities will be valid and binding obligations of the Company
enforceable in accordance with their terms, except as such enforceability may
be limited by bankruptcy, insolvency, moratorium, or similar laws affecting
creditors' rights generally or by equitable principles.
I hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement, and to the filing of this opinion with any other
appropriate governmental agency.
Sincerely,
/s/ Gene S. Schneyer
-------------------------
Gene S. Schneyer
Vice President, Secretary
and General Counsel
GSS/LRC/la
<PAGE> 1
Exhibit 12
Advanta Corp.
and Subsidiaries
Statements setting forth details of computation of ratio
of earnings to fixed charges and preferred dividends
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in thousands)
<TABLE>
<CAPTION>
Six Months
Ended
June 30, Year Ended December 31,
-------------- ------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Net earnings before extraordinary items $ 64,183 $ 50,681 $106,063 $ 77,920 $ 48,037 $ 25,165 $ 15,095
Federal and state income taxes ........ 35,651 28,998 59,144 45,335 29,063 14,154 7,435
------- ------- ------- ------- ------- ------- -------
Earnings before income taxes and
extraordinary items ................. 99,834 79,679 165,207 123,255 77,100 39,319 22,530
------- ------- ------- ------- ------- ------- -------
Fixed charges:
Interest ............................ 73,681 42,335 94,758 79,303 93,545 109,139 112,636
One-Third of all rentals ............ 742 857 1,809 1,591 1,252 1,103 1,031
------- ------- ------- ------- ------- ------- -------
Total fixed charges ................... 74,423 43,192 96,567 80,894 94,797 101,242 113,667
------- ------- ------- ------- ------- ------- -------
Earnings before income taxes
extraordinary item and fixed charges $174,257 $122,871 $261,774 $204,149 $171,897 $149,561 $136,197
------- ------- ------- ------- ------- ------- -------
Ratio of earnings to fixed charges .... 2.34x 2.84x 2.71x 2.52x 1.81x 1.36x 1.20x
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 Registration Statement of our reports dated January
23, 1995 included in the Advanta Corp. Form 10-K for the year ended December
31, 1994, and to all references to our Firm included in this Form S-3
Registration Statement.
Arthur Andersen LLP
Philadelphia, PA
September 12, 1995
<PAGE> 1
SECURITIES ACT OF 1933
REGISTRATION NO. ______________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY PURSUANT
TO SECTION 305 (B)(2) X
---
_________________
CORESTATES BANK, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
BROAD AND CHESTNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19101 23-0972337
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (I.R.S. EMPLOYER IDENTIFICATION NO.)
CORESTATES BANK, N.A.
ATTN: OFFICE OF RESIDENT COUNSEL
BROAD AND CHESTNUT STREETS
PHILADELPHIA, PA 19101
(215) 973-3810
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
===============
ADVANTA CORP.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 23-1462070
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
===============
BRANDYWINE CORPORATE CENTER 19703
650 NAAMANS ROAD
CLAYMONT, DE
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
===============
REDIRESERVE VARIABLE RATE
CERTIFICATES, NOTES
(TITLE OF INDENTURE SECURITIES)
================================================================================
<PAGE> 2
Item 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.
The Office of the Comptroller of the Currency, Washington,
D.C. 20220.
Federal Reserve Bank of Philadelphia, Pennsylvania 19105.
The Board of Governors of the Federal Reserve Systems,
Washington, D.C. 20551.
Federal Deposit Insurance Corporation, Washington, D.C.
20429.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With The Obligor. If the obligor is an affiliate of the
Trustee, describe each such affiliation.
None.
Item 13. Defaults By The Obligor.
(a) State whether there is or has been a default with respect to the
securities under the indenture. Explain the nature of an such
default.
None.
(b) If the Trustee is a trustee under another indenture under which
any other securities, or certificates of interest or participation
in any other securities, of the obligor are outstanding, or is
trustee for more than one outstanding series of securities under
the indenture, state whether there has been a default under any
such indenture or series, identify the indenture or series
affected, and explain the nature of such default.
None.
2 OF 4
<PAGE> 3
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the
foreign trustee is authorized to act as sole trustee
under indentures qualified or to be qualified under
the Act.
Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as part of
this statement of eligibility.
(1) Copy of Articles of Association of the trustee as now in
effect.*
(2) Copy of the certificate of authority of the trustee to
commence business.*
(3) Copy of authorization of the trustee to exercise corporate
trust powers.*
(4) Copy of existing Bylaws of the trustee.*
(5) Copy of Indenture referred to in item 4, if the obligor is in
default. Not applicable.
(6) The consents of the United States institutional trustees
required by Section 321(b) of the Trust Indenture Act of 1939,
as amended.
(7) Copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervisory or examining authority.
(8) Copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified
or to be qualified under the Trust Indenture Act of 1939, as
amended. Not applicable.
(9) Foreign trustee's consent to service of process on Form F-X.
Not applicable
________________________
Exhibits followed by an asterisk are incorporated herein by reference
pursuant to Rule 7A-29.
Exhibit 16(1) - Exhibit 16(1) to Form T-1 filed in registration
statement of November 1, 1993 of Bell Telephone Company of
Pennsylvania, No. 33-50869.
Exhibit 16(2) - Exhibit 16(2) to Form T-1 filed in registration
statement of February 9, 1956 of Bell Telephone Company of
Pennsylvania, No. 22-12266.
Exhibit 16(3) - Exhibit 16(3) to Form T-1 filed in registration
statement of February 9, 1956 of Bell Telephone Company of
Pennsylvania, No. 22-12266.
Exhibit 16(4) - Exhibit 16(4) to Form T-1 filed in registration
statement of November 1, 1993 of Bell Telephone Company of
Pennsylvania, No. 33-50869.
3 OF 4
<PAGE> 4
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, CoreStates Bank, N.A., a national banking association
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, and its seal to be hereunto affixed and
attested, all in the City of Philadelphia and Commonwealth of Pennsylvania, on
the 12th day of September , 1995 .
CORESTATES BANK, N.A.
By: /s/ J. Bruce Herd
------------------------------
Name: J. Bruce Herd
Title: Vice President
[Seal]
Attest:
By: /S/ Marlene Talasnik
Name: Marlene Talasnik
Title: Senior Corporate Trust Officer
4 OF 4
<PAGE> 5
EXHIBIT 16(6)
CONSENT OF TRUSTEE REQUIRED BY SECTION 321(B)
OF THE TRUST INDENTURE ACT OF 1939, AS AMENDED
CoreStates Bank, N.A. hereby consents, subject to the terms and
conditions of Section 321(b) of the Trust Indenture Act of 1939, as amended,
that reports of examinations of its affairs by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request of such Commission therefor.
CORESTATES BANK, N.A.
By: /S/ J. Bruce Herd
-------------------------
Name: J. Bruce Herd
Title: Vice President
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: CoreStates Bank, National Association Call Date: 6/30/95 ST-BK: 42-0204 FFIEC 031
Address: P.O. Box 7618 Page RC-1
City, State Zip: Philadelphia, PA 19101-7618
FDIC Certificate No.: 00719
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC -- Balance Sheet
<TABLE>
<CAPTION>
__________
C400
________________________
Dollar Amounts in Thousands RCFD Bil Mil Thou
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Assets ////////////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A) : ////////////////////////
a. Non interest-bearing balances and currency and coin(1) ...................................... 0081 2,042,244 1.a.
b. Interest-bearing balances(2) ................................................................ 0071 1,937,483 1.b.
2. Securities: ////////////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A) ................................... 1754 1,287,770 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ................................. 1773 324,656 2.b.
3. Federal funds sold and securities purchased under agreements to resell in domestic offices ////////////////////////
of the bank of its Edge and Agreement subsidiaries, and in IBFs: ////////////////////////
a. Federal funds sold .......................................................................... 0276 431,725 3.a.
b. Securities purchased under agreements to resell ............................................. 0277 9,623 3.b.
4. Loans and lease financing receivables: ___________________________////////////////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 14,518,436 //////////////////////// 4.a.
b. LESS: Allowance for loan and lease losses ....................... RCFD 3123 307,010 //////////////////////// 4.b.
c. LESS: Allocated transfer risk reserve ........................... RCFD 3128 0 //////////////////////// 4.c.
d. Loans and leases, net of unearned income, ___________________________////////////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c) ......................................... 2125 14,211,426 4.d.
5. Trading assets (from Schedule RC-D) ............................................................ 3545 5,008 5.
6. Premises and fixed assets (including capitalized leases) ....................................... 2145 306,468 6.
7. Other real estate owned (from Schedule RC-M) ................................................... 2150 20,412 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ....... 2130 784 8.
9. Customers' liability to this bank on acceptances outstanding ................................... 2155 516,816 9.
10. Intangible assets (from Schedule RC-M) ......................................................... 2143 212,949 10.
11. Other assets (from Schedule RC-F) .............................................................. 2160 559,047 11.
12. Total assets (sum of items 1 through 11) ....................................................... 2170 21,866,411 12.
____________ --------------------------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: CoreStates Bank, National Association Call Date: 6/30/95 ST-BK: 42-0204 FFIEC 031
Address: P.O. Box 7618 Page RC2
City, State Zip: Philadelphia, PA 19101-7618
FDIC Certificate No.: 00719
</TABLE>
Schedule RC--Continued
<TABLE>
<CAPTION>
_________________________
Dollar Amounts in Thousands////////// Bil Mil Thou
___________________________________________________________________________________________________________________________
<S> <C> <C> <C> <C> <C>
Liabilities ////////////////////////
13. Deposits: ////////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, ////////////////////////
part I).................................................................................... RCON 2200 14,086,213 13.a.
(1) Noninterest-bearing (1) .................................... RCON 6631 4,875,549 ////////////////////////13.a.(1)
(2) Interest-bearing ........................................... RCON 6636 9,210,664 ////////////////////////13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBF's
(from Schedule RC-E, part II) ............................................................. RCFN 2200 1,913,347 13.b.
(1) Noninterest-bearing......................................... RCFN 6631 421,627 ////////////////////////13.b.(1)
(2) Interest-bearing............................................ RCFN 6636 1,491,720 ////////////////////////13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase in ////////////////////////
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in ////////////////////////
IBFs: ////////////////////////
a. Federal funds purchased ................................................................... RCFD 0278 2,045,379 14.a.
b. Securities sold under agreements to repurchase ............................................ RCFD 0279 110,192 14.b.
15. a. Demand notes issued to the U.S. Treasury .................................................. RCON 2840 400,403 15.a.
b. Trading liabilities (from Schedule RC-D) .................................................. RCFD 3548 5,317 15.b.
16. Other borrowed money: ////////////////////////
a. With original maturity of one year or less ................................................ RCFD 2332 80,855 16.a.
b. With original maturity of more than one year .............................................. RCFD 2333 43,571 16.b.
17. Mortgage indebtedness and obligations under capitalized leases ............................... RCFD 2910 505 17.
18. Bank's liability on acceptances executed and outstanding ..................................... RCFD 2920 517,664 18.
19. Subordinated notes and debentures ............................................................ RCFD 3200 180,000 19.
20. Other liabilities (from Schedule RC-G) ....................................................... RCFD 2930 747,933 20.
21. Total liabilities (sum of items 13 through 20) ............................................... RCFD 2948 20,131,379 21.
////////////////////////
22. Limited-life preferred stock and related surplus ............................................. RCFD 3282 0 22.
Equity Capital ////////////////////////
23. Perpetual preferred stock and related surplus ................................................ RCFD 3838 0 23.
24. Common stock ................................................................................. RCFD 3230 37,308 24.
25. Surplus (exclude all surplus related to preferred stock) ..................................... RCFD 3839 1,079,987 25.
26. a. Undivided profits and capital reserves .................................................... RCFD 3632 606,897 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities .................... RCFD 8434 12,354 26.b.
27. Cumulative foreign currency translation adjustments .......................................... RCFD 3284 (1,514)27.
28. Total equity capital (sum of items 23 through 27) ............................................ RCFD 3210 1,735,032 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of ////////////////////////
items 21, 22, and 28) ........................................................................ RCFD 3300 21,866,411 29.
__________________________
</TABLE>
<PAGE> 8
<TABLE>
<S> <C> <C> <C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the Number
most comprehensive level of auditing work performed for the bank by independent external __________________
auditors as of any date during 1994 ................................................................... RCFD 6724 N/A M.1.
__________________
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors's examination on the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
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______________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
