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HSBC AMERICAS, INC.
Issuer
TO
BANKERS TRUST COMPANY
Trustee
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SUPPLEMENTAL INDENTURE
Dated as of December 12, 1996
to
INDENTURE
Dated as of October 24, 1996
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SUBORDINATED DEBT SECURITIES
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THIS SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"),
dated as of December 12, 1996, between HSBC AMERICAS, INC., a
Delaware corporation (hereinafter called the "Company"), having
its principal office at Xxx Xxxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxx
Xxxx 00000 and BANKERS TRUST COMPANY, a New York banking
corporation, as trustee (hereinafter called the "Trustee"), under
the Indenture (as defined below), having its Corporate Trust
Office at 0 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Indenture.
WHEREAS, the Company and the Trustee previously duly
executed, and the Company duly delivered to the Trustee, an
Indenture for Subordinated Debt Securities, dated as of October
24, 1996 (the "Indenture");
WHEREAS, pursuant to Section 1101(10) of the Indenture,
this Supplemental Indenture may be entered into without the
consent of the Holders;
WHEREAS, the Board of Directors of the Company has authorized
the execution of this Supplemental Indenture and its delivery to
the Trustee;
WHEREAS, the Company has delivered an Opinion of Counsel to
the Trustee pursuant to Section 1103 of the Indenture; and
WHEREAS, all other actions necessary to make this
Supplemental Indenture a legal, valid and binding obligation of
the parties hereto in accordance with its terms and the terms of
the Indenture have been performed;
NOW, THEREFORE, in consideration of the promises contained
herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Company and
the Trustee hereby mutually covenant and agree for the equal and
proportionate benefit of all Holders of the Debt Securities as
follows:
ARTICLE I
AMENDMENTS
Upon execution of this Supplemental Indenture, the terms of
the Indenture shall be amended as follows:
SECTION 1.1. The definition of "Senior Indebtedness" in
Section 101 of the Indenture shall be amended by adding the words
"or Indebtedness Ranking Junior to the Debt Securities," after
the word "Securities" in the third line thereof.
SECTION 1.2. Section 511 of the Indenture shall be amended
by replacing, wherever they appear, the words "Event of Default"
with the word "Default".
SECTION 1.3. Section 602 of the Indenture shall be amended
by replacing, wherever they appear, the words "Event of Default"
with the word "Default".
SECTION 1.4. Section 1402(3) of the Indenture shall be
amended by replacing, wherever they appear, the words "Event of
Default" with the word "Default".
SECTION 1.5. The definition of "Maturity" in Section 101 of
the Indenture shall be amended and restated as follows:
"Maturity" when used with respect to any Debt Security
means the date on which the principal of such Debt Security
becomes due and payable as therein or herein provided, whether at
the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption, repayment at
the option of the Holder thereof or otherwise; provided, however,
that, unless otherwise provided as contemplated by Section 301
with respect to the Debt Securities of any series, if the Company
does not pay all or any part of the principal at the Stated
Maturity with respect to such principal, the obligation to make
such payment and the Stated Maturity with respect to such
principal shall be deferred until the first Business Day after
the date that falls six months after the original Stated Maturity
with respect to such principal (it being understood for the
avoidance of doubt that any such deferral shall take place only
once with respect to any payment of principal).
SECTION 1.6. The proviso in Section 503 of the Indenture
shall be amended by replacing the proviso therein with the
following proviso:
provided that if the Company does not pay any installment
of interest on the pertinent Interest Payment Date or all or any
part of principal at the Stated Maturity with respect to such
principal, the obligation to make such payment and such Interest
Payment Date or Stated Maturity, as the case may be, shall be
deferred until (i) in the case of a payment of interest, the date
upon which a dividend is paid on any class of share capital of
the Company and (ii) in the case of a payment of principal, the
first Business Day after the date that falls six months after the
original Stated Maturity with respect to such principal. Failure
by the Company to make any such payment prior to such deferred
Interest Payment Date or Stated Maturity shall not constitute a
default by the Company or otherwise allow any Holder to xxx the
Company for such payment or to take any other action. Any payment
so deferred shall not be treated as due for any purpose
(including, without limitation, for the purposes of ascertaining
whether or not a Default has occurred) until the deferred
Interest Payment Date or Stated Maturity, as the case may be. Any
such deferral shall take place only once with respect to any
payment of interest or principal.
ARTICLE II
MISCELLANEOUS
SECTION 2.1. Upon execution of this Supplemental Indenture,
the Indenture shall be deemed to be modified as herein provided,
but, except as expressly amended hereby, the Indenture shall
continue in full force and effect.
2
SECTION 2.2. Upon execution, this Supplemental Indenture
shall form a part of the Indenture and the Supplemental Indenture
and the Indenture shall be read, taken and construed as one and
the same instrument for all purposes.
SECTION 2.3. This Supplemental Indenture shall become
effective as of the date first above written.
SECTION 2.4. Debt Securities of any series authenticated
and delivered pursuant to the Indenture after the execution of
this Supplemental Indenture shall bear a notation that the
Indenture has been supplemented by this Supplemental Indenture.
Any Global Security shall be in the form attached as Exhibit A
hereto.
SECTION 2.5. THIS SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO
BE A CONTRACT MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF
NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE OF NEW
YORK.
SECTION 2.6. This Supplemental Indenture may be executed in
any number of counterparts, each of which so executed shall be
deemed to be an original, but all of which together shall be
deemed to constitute but one and the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
HSBC AMERICAS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
Attest:
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: General Counsel
SEAL
BANKERS TRUST COMPANY, as Trustee
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Assistant Treasurer
Attest
/s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Assistant Treasurer
SEAL
STATE OF NEW YORK, )
COUNTY OF NEW YORK, ) ss.:
On the 10th day of December, 1996, before me personally
came Xxxxxx X. Xxxxxxx, to me known, who, being by me duly sworn, did
depose and say that he is the Chief Financial Officer of HSBC Americas,
Inc., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
/s/ Xxxxx X. Xxxxxxx
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Notary Public
SEAL
STATE OF NEW YORK, )
COUNTY OF __________,) ss.:
On the 13th day of December, 1996, before me personally
came Xxxxxxx Xxxxxxx, to me known, who, being by me duly sworn, did
depose and say that he is an Assistant Treasurer of Bankers Trust
Company, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
/s/ Xxxxx Xxxxxxxx
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Notary Public
EXHIBIT A
UNLESS OR UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS GLOBAL CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE NOTES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION
AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION,
BANK INSURANCE FUND OR ANY OTHER GOVERNMENT AGENCY.
$[ ]
HSBC AMERICAS, INC.
___% SUBORDINATED NOTES DUE _______________
GLOBAL SECURITY
CUSIP NO.: PRINCIPAL AMOUNT
REPRESENTED
No. $_____________
HSBC AMERICAS, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company",
which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to
pay to __________, as the nominee of ____________________ (the
"Depositary"), or registered assigns, the principal sum of
____________________ ($___________) on ___________, ______
("Maturity"), and to pay interest thereon semiannually in arrears
on each _____ and ___________ (each, an "Interest Payment Date"),
beginning _________, and at maturity, from ________, or from the
most recent Interest Payment Date to which interest has been paid
or duly provided for, at the rate of ____% per annum, until the
principal hereof is paid or made available for payment.
This security is one of the global certificates issued
on the date hereof, which, in the aggregate, represent 100% of
the principal face amount of the Company's ____% Subordinated
Notes due ____________ ( the "Notes"), and is one of the duly
authorized issues of securities of the Company (the "Debt
Securities"), issued or to be issued in one or more series under
an indenture, dated as of October 24, 1996, between the Company
and Bankers Trust Company, as trustee (the "Trustee", which term
includes any successor Trustee under the Indenture), to which
indenture and all indentures supplemental thereto, including the
Supplemental Indenture between the Company and the Trustee, dated
as of December 12, 1996 (such indenture as so supplemented being
hereinafter referred to as the "Indenture"), reference is hereby
made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the
Trustee and each of the Holders of the Debt Securities and of the
terms upon which the Debt Securities are, and are to be,
authenticated and delivered.
The interest payable hereunder, and punctually paid or
duly provided for, on any Interest Payment Date will be paid to
the Person in whose name this Debt Security, or one or more
Predecessor Securities, is registered at the close of business on
the fifteenth day prior to each Interest Payment Date (each a
"Regular Record Date"). "Business Day" when used with respect to
any Place of Payment specified pursuant to Section 301 of the
Indenture means any day that is not a Saturday, a Sunday or a day
on which banking institutions or trust companies in such Place of
Payment are authorized or obligated by law or executive order to
close. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holder
on such Regular Record Date by virtue of such Person having been
such Holder, and may either be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date to be fixed by
the Trustee in the manner provided for in Section 307 of the
Indenture or be paid in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Payment of the principal of and interest on this Note
will be made by the Company to the Paying Agent, and if such
payments are made by the Company, the Paying Agent in turn will
make such payments to the Depositary.
Interest on the Notes will be computed on the basis of
a 360-day year of twelve 30-day months. If an Interest Payment
Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on
the next succeeding Business Day with the same force and effect
as if made on such Interest Payment Date, and no additional
interest will accrue as a result of such delayed payment.
A-2
The Notes are not subject to redemption prior to maturity.
The indebtedness of the Company evidenced by the
Notes, including the principal thereof and interest thereon, is
to the extent and in the manner set forth in the Indenture,
subordinate and junior in right of payment to the Company's
obligations to holders of Senior Indebtedness of the Company, and
each Holder of the Notes, by the acceptance thereof, agrees to
and shall be bound by such provisions of the Indenture.
If an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal of all the Notes
may be declared due and payable in the manner and with the effect
provided in the Indenture. There is no right of acceleration of
the payment of principal of the Notes upon a default in the
payment of interest on the Notes or in the performance of any
covenant of the Company in the Indenture or in the Notes.
If the Company does not pay any installment of
interest on the Notes on the applicable Interest Payment Date or
all or any part of the principal thereof at Maturity, the
obligation to make such payment and such Interest Payment Date or
Maturity, as the case may be, shall be deferred until (i) in the
case of a payment of interest, the date upon which a dividend is
paid on any class of share capital of the Company and (ii) in the
case of a payment of principal, the first Business Day after the
date that falls six months after the original Maturity. Each
payment so deferred will accrue interest at the rate per annum
set forth in the first paragraph hereof. Any payment so deferred
shall not be treated as due for any purpose. Any such deferral
shall take place only once with respect to any payment of
interest or principal.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Debt Securities of each series to be affected
under the Indenture by the Company and the Trustee with the
consent of the Holders of not less than 66 2/3 % in aggregate
principal amount of the Debt Securities at the time Outstanding
of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in
aggregate principal amount of the Debt Securities of any series
at the time Outstanding, on behalf of the Holders of all the Debt
Securities of such series, to waive, with respect to the Debt
Securities of such series, compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note
issued upon registration of transfer hereof or in exchange for or
in lieu hereof, whether or not notation of such consent or waiver
is made upon this Note.
Holders of the Notes may not enforce their rights
pursuant to the Indenture or the Notes except as provided in the
Indenture. No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of (and premium, if any) and interest on
this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
A-3
The Debt Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and
integral multiples thereof.
As provided in the Indenture, and subject to certain
limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of any authorized
denominations and of like tenor, as requested by the Holder
surrendering the same.
No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith and any other expenses provided
for in the Indenture in connection with the issuance of any new
Note in the event of the destruction, mutilation, loss, or theft
of any Note.
Prior to the due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for all purposes,
whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.
Unless the certificate of authentication hereon has
been duly executed by the Trustee by manual signature of one of
its authorized officers, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purposes.
All terms used in this Note which are not defined
herein shall have the meanings assigned to them in the Indenture.
This Note shall be construed in accordance with and
governed by the laws of the State of New York.
A-4
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
HSBC AMERICAS, INC.
by
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Name:
Title:
Corporate Seal
Attest:
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by
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
herein issued under the within-mentioned Indenture.
Bankers Trust Company,
as Trustee
by
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Authorized Officer
A-5
