================================================================================
ZIONS BANCORPORATION, ISSUER
TO
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION, TRUSTEE
----------------
Indenture
Dated as of October 25, 2001
----------------
$200,000,000
FIXED/FLOATING RATE SUBORDINATED NOTES DUE OCTOBER 15, 2011
================================================================================
Certain Sections of this Indenture relating to
Sections 310 through 318 of the Trust Indenture Act of 1939:
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)(1) .............................................. 609
(a)(2) .............................................. 609
(a)(3) .............................................. Not Applicable
(a)(4) .............................................. Not Applicable
(b) .............................................. 608
............................................ 610
Section 311(a) .............................................. 613
(b) .............................................. 613
Section 312(a) .............................................. 701
............................................ 602(a)
(b) .............................................. 702(b)
(c) .............................................. 702(c)
Section 313(a) .............................................. 703(a)
(a)(4) .............................................. 101
............................................ 1004
(b) .............................................. 703(a)
(c) .............................................. 703(a)
(d) .............................................. 703(b)
Section 314(a) .............................................. 704
(b) .............................................. Not Applicable
(c)(1) .............................................. 102
(c)(2) .............................................. 102
(c)(3) .............................................. Not Applicable
(d) .............................................. Not Applicable
(e) .............................................. 102
Section 315(a) .............................................. 601
(b) .............................................. 602
(c) .............................................. 601
(d) .............................................. 601
(e) .............................................. 514
Section 316(a) .............................................. 101
(a)(1)(A) .............................................. 502
(a)(1)(B) .............................................. 513
(a)(2) .............................................. Not Applicable
(b) .............................................. 508
(c) .............................................. 104(c)
Section 317(a)(1) .............................................. 503
(a)(2) .............................................. 504
(b) .............................................. 1003
Section 318(a) .............................................. 107
---------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
PAGE
TABLE OF CONTENTS
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions...................................................................1
SECTION 102. Compliance Certificates and Opinions..........................................9
SECTION 103. Form of Documents Delivered to Trustee........................................9
SECTION 104. Acts of Holders; Record Dates................................................10
SECTION 105. Notices, Etc., to Trustee and Company........................................11
SECTION 106. Notice to Holders; Waiver....................................................12
SECTION 107. Conflict with Trust Indenture Act............................................12
SECTION 108. Effect of Headings and Table of Contents.....................................12
SECTION 109. Successors and Assigns.......................................................12
SECTION 110. Separability Clause..........................................................12
SECTION 111. Benefits of Indenture........................................................13
SECTION 112. Governing Law................................................................13
SECTION 113. Legal Holidays...............................................................13
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally..............................................................13
SECTION 202. Form of Face of Security.....................................................14
SECTION 203. Form of Reverse of Security..................................................19
SECTION 204. Form of Trustee's Certificate of Authentication..............................21
ARTICLE THREE
The Securities
SECTION 301. Title and Terms..............................................................22
SECTION 302. Denominations................................................................23
SECTION 303. Execution, Authentication, Delivery and Dating...............................23
SECTION 304. Temporary Securities.........................................................23
SECTION 305. Registration, Registration of Transfer and Exchange..........................24
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.............................26
SECTION 307. Payment of Interest; Interest Rights Preserved...............................26
SECTION 308. Persons Deemed Owners........................................................27
SECTION 309. Cancellation.................................................................28
SECTION 310. Computation of Interest......................................................28
SECTION 311. CUSIP Numbers................................................................28
---------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
ARTICLE FOUR PAGE
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture......................................28
SECTION 402. Application of Trust Money...................................................29
ARTICLE FIVE
Remedies
SECTION 501. Events of Default............................................................30
SECTION 502. Acceleration of Maturity; Rescission and Annulment...........................31
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee..............32
SECTION 504. Trustee May File Proofs of Claim.............................................33
SECTION 505. Trustee May Enforce Claims Without Possession of Securities..................33
SECTION 506. Application of Money Collected...............................................34
SECTION 507. Limitation on Suits..........................................................34
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest....34
SECTION 509. Restoration of Rights and Remedies...........................................35
SECTION 510. Rights and Remedies Cumulative...............................................35
SECTION 511. Delay or Omission Not Waiver.................................................35
SECTION 512. Control by Holders...........................................................35
SECTION 513. Waiver of Past Defaults......................................................35
SECTION 514. Undertaking for Costs........................................................36
SECTION 515. Waiver of Stay or Extension Laws.............................................36
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities..........................................36
SECTION 602. Notice of Defaults...........................................................37
SECTION 603. Certain Rights of Trustee....................................................37
SECTION 604. Not Responsible for Recitals or Issuance of Securities.......................38
SECTION 605. May Hold Securities..........................................................38
SECTION 606. Money Held in Trust..........................................................38
SECTION 607. Compensation and Reimbursement...............................................39
SECTION 608. Disqualification; Conflicting Interests......................................39
SECTION 609. Corporate Trustee Required; Eligibility......................................39
SECTION 610. Resignation and Removal; Appointment of Successor............................40
SECTION 611. Acceptance of Appointment by Successor.......................................41
SECTION 612. Merger, Conversion, Consolidation or Succession to Business..................41
SECTION 613. Preferential Collection of Claims Against Company............................41
---------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
iii
ARTICLE SEVEN PAGE
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders....................41
SECTION 702. Preservation of Information; Communications to Holders.......................42
SECTION 703. Reports by Trustee...........................................................42
SECTION 704. Reports by Company...........................................................42
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.........................43
SECTION 802. Successor Substituted........................................................43
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders...........................44
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. Conformity with Trust Indenture Act..........................................45
SECTION 906. Reference in Securities to Supplemental Indentures...........................45
SECTION 907. Subordination Impaired.......................................................46
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest...................................46
SECTION 1002. Maintenance of Office or Agency..............................................46
SECTION 1003. Money for Security Payments to Be Held in Trust..............................47
SECTION 1004. Statement by Officers as to Default..........................................47
SECTION 1005. Existence....................................................................48
SECTION 1006. Payment of Taxes and Other Claims............................................48
SECTION 1007. Company Statement as to Compliance...........................................48
SECTION 1008. Waiver of Certain Covenants..................................................48
---------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
iv
ARTICLE ELEVEN PAGE
Redemption of Securities
SECTION 1101. Right of Redemption..........................................................49
SECTION 1102. Applicability of Article.....................................................49
SECTION 1103. Election to Redeem; Notice to Trustee........................................49
SECTION 1104. Selection by Trustee of Securities to Be Redeemed............................49
SECTION 1105. Notice of Redemption.........................................................50
SECTION 1106. Deposit of Redemption Price..................................................50
SECTION 1107. Securities Payable on Redemption Date........................................50
SECTION 1108. Securities Redeemed in Part..................................................51
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Securities Subordinate to Senior Indebtedness................................51
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc...............................51
SECTION 1203. Prior Payment to Senior Indebtedness Upon Acceleration of Securities.........52
SECTION 1204. No Payment When Senior Indebtedness in Default...............................52
SECTION 1205. Payment Permitted If No Default..............................................53
SECTION 1206. Subrogation to Rights of Holders of Senior Indebtedness......................53
SECTION 1207. Provisions Solely to Define Relative Rights..................................53
SECTION 1208. Trustee to Effectuate Subordination..........................................54
SECTION 1209. No Waiver of Subordination Provisions........................................54
SECTION 1210. Notice to Trustee............................................................54
SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating Agent...............55
SECTION 1212. Trustee Not Fiduciary for Holders of Senior Indebtedness (or Creditors in
Respect of General Obligations)..............................................55
SECTION 1213. Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights.............................................................55
SECTION 1214. Article Applicable to Paying Agents..........................................56
SECTION 1215. Payment of Proceeds in Certain Cases.........................................56
SECTION 1216. Automatic Termination........................................................57
---------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
v
INDENTURE, dated as of October 25, 2001, between Zions
Bancorporation, a corporation duly organized and existing under the laws of Utah
(herein called the "Company"), having its principal office at Xxx Xxxxx Xxxx,
Xxxxx 0000, Xxxx Xxxx Xxxx, Xxxx 00000, and Chase Manhattan Bank and Trust
Company, National Association, a national banking association duly organized and
existing under the laws of the United States of America, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its Fixed/Floating Rate Subordinated Notes due October 15, 2011 (herein called
the "Securities") of substantially the tenor and amount hereinafter set forth,
and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make the Securities, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01 DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as
well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer
or transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security to the extent
applicable to such transaction and as in effect from time to time.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company, to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in Salt
Lake City, Utah or
New York,
New York are authorized or obligated by law or
executive order to close.
"Calculation Agent" means Xxxxxxx, Xxxxx & Co. and its
successors and assigns, or such other calculation agent as is appointed by the
Company with the written consent of the Trustee, which consent shall not be
unreasonably withheld. The Company shall appoint, with the written consent of
the Trustee, which consent shall not be unreasonably withheld, a successor
calculation agent in the circumstances and as provided in Section 202.
"California Bank & Trust" means California Bank & Trust, a
California banking corporation, together with its successors.
"Claim" shall have the meaning assigned thereto in Section
101(5) of the Bankruptcy Code of 1978, as amended to the date of this Indenture.
"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 instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
2
"Company Request" and "Company Order" mean a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in San Francisco, California at which at any particular time its
corporate trust business shall be administered and which initially shall be 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Daily Interest Amount" has the meaning set forth in the
form of the Securities contained in Section 202.
"Default" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section
307.
"Depositary" means a clearing agency registered under the
Exchange Act that is designated to act as Depositary for the Securities as
contemplated by Section 301 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean such successor Depositary. The Depositary shall
initially be DTC.
"Determination Date" has the meaning set forth in the form
of the Securities contained in Section 202.
"DTC" means The Depository Trust Company, a
New York
corporation.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning specified in Section 1215.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to time.
"Exchange Offer" has the meaning set forth in the form of
the Securities contained in Section 202.
"Exchange Registration Statement" has the meaning set forth
in the form of the Securities contained in Section 202.
"Exchange Securities" means the securities issued pursuant
to the Exchange Offer and their Successor Securities.
"Expiration Date" has the meaning specified in Section
104(c).
"Floating Interest Rate" has the meaning set forth in the
form of the Securities contained in Section 202.
3
"Floating Rate Period" has the meaning set forth in the form
of the Securities contained in Section 202.
"General Obligations" means all obligations of the Company
to make payment on account of claims of general creditors, other than (A)
obligations on account of Senior Indebtedness and (B) obligations on account of
the Securities and indebtedness for money borrowed ranking PARI PASSU with or
subordinate to the Securities; PROVIDED, HOWEVER, that if the Board of Governors
of the Federal Reserve System (or other Federal banking supervisor that shall at
the time of determination be the Company's primary Federal banking supervisor)
shall promulgate any rule or issue any interpretation defining or describing the
term "general creditor" or "general creditors" or "senior indebtedness" for
purposes of its criteria for the inclusion of subordinated debt of a bank
holding company (including a financial holding company, if applicable) in
capital, or otherwise defining or describing the obligations to which
subordinated debt of a bank holding company (including a financial holding
company, if applicable) must be subordinated to be included in capital, to
include any obligations not included in the definition of "Senior Indebtedness"
herein, the term "General Obligations" shall mean such obligations as defined or
described in the first such rule or interpretation, other than obligations
described in clauses (A) and (B) above.
"Global Security" means a Security bearing the legend
specified in Section 202 evidencing all or part of the Securities, issued to the
Depositary or its nominee and registered in the name of such Depositary or
nominee.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indebtedness for money borrowed", when used with respect to
the Company, means any obligation of, or any obligation guaranteed by, the
Company for the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Reset Date" has the meaning set forth in the form
of the Securities contained in Section 202.
"Interest Reset Period" has the meaning set forth in the
form of the Securities contained in Section 202.
"LIBOR" has the meaning set forth in the form of the
Securities contained in Section 202.
"London Banking Day" has the meaning set forth in the form
of the Securities contained in Section 202.
4
"Major Constituent Bank" means any Subsidiary which is
organized as a banking organization under Federal or State law and which
represents 25% or more of the consolidated total assets of the Company.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1004 shall
be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Securities" means all Securities other than
Exchange Securities.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; PROVIDED
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
5
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Payment Date," has the meaning set forth in the
form of the Securities contained in Section 202.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Securities" means the Exchange Securities and
all other Securities sold or otherwise disposed of pursuant to an effective
registration statement under the Securities Act, together with their respective
Successor Securities.
"Registration Default" has the meaning set forth in the form
of the Securities contained in Section 202.
"Registration Default Period" has the meaning set forth in
the form of the Securities contained in Section 202.
"Registration Rights Agreement" has the meaning set forth in
the form of the Securities contained in Section 202.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the April 1 or October 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Representative Amount" has the meaning set forth in the
form of the Securities contained in Section 202.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee expressly assigned to administer the
duties of the Trustee hereunder.
"Restricted Securities" means all Securities required
pursuant to Section 305 to bear any Restricted Securities Legend. Such term
includes the Restricted Global Security.
"Restricted Securities Legend" means, collectively, the
legends substantially in the forms of the legends required in the form of
Security set forth in Section 202 to be placed upon each Restricted Security.
6
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" means the securities designated as such in the
first paragraph of the RECITALS OF THE COMPANY and includes the Exchange
Securities.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium,
if any) and interest on (a) all indebtedness for money borrowed of the Company
(including indebtedness of others that the Company guarantees) other than the
Company's 8?% Subordinated Notes due October 15, 2002, the Company's Floating
Rate Subordinated Notes due November 24, 2005, the Company's Floating Rate
Subordinated Notes due June 15, 2008, Zions Financial Corp.'s Fixed/Floating
Rate Guaranteed Notes due May 15, 2011, Zions Institutional Capital Trust A's
8.536% Capital Securities due December 15, 2026, GB Capital Trust's 10.25%
Capital Securities due January 15, 2027, VBC Capital I Trust's 9.50% Capital
Securities due April 30, 2027, CSBI Capital Trust's 11.75% Capital Securities
due June 6, 2027 (all of which shall rank pari passu with the Securities) and
the Securities, whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, except (i) such indebtedness as is by its terms
expressly stated to be junior in right of payment to the Securities and (ii)
such indebtedness as is by its terms expressly stated to rank pari passu in
right of payment with the Securities, and (b) any deferrals, renewals or
extensions of any such Senior Indebtedness.
"Shelf Registration Statement" has the meaning set forth in
the form of the Securities contained in Section 202.
"Special Interest" has the meaning set forth in the form of
the Securities contained in Section 202.
"Special Interest Notice" has the meaning set forth in
Section 301.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Step-Down Date" has the meaning set forth in the form of
the Securities contained in Section 202.
"Step-Up" has the meaning set forth in the form of the
Securities contained in Section 202.
"Subsequent Step-Up" has the meaning set forth in the form
of the Securities contained in Section 202.
7
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Telerate Page 3750" has the meaning set forth in the form
of the Securities contained in Section 202.
"Termination Event" means (a) the promulgation of any rule
or regulation or the issuance of any interpretation of the Board of Governors of
the Federal Reserve System (or other Federal banking supervisor that shall at
the time of determination be the Company's primary Federal banking supervisor)
that (i) defines or describes the terms "general creditor" or "general
creditors" or "senior indebtedness" for purposes of its criteria for the
inclusion of subordinated debt of a bank holding company (including a financial
holding company, if applicable) in capital, or otherwise defines or describes
the obligations to which subordinated debt of a bank holding company (including
a financial holding company, if applicable) must be subordinated for the debt to
be included in capital, to include no obligations other than those covered by
the definition of Senior Indebtedness without regard to any other obligations of
the Company, (ii) permits the Company to include the Securities in its capital
if they were subordinated in right of payment to the Senior Indebtedness without
regard to any other obligations of the Company, (iii) otherwise eliminates the
requirement that subordinated debt of a bank holding company (including a
financial holding company, if applicable) must be subordinated in right of
payment to the claims of its general creditors in order to be included in
capital or (iv) causes the Securities to be excluded from capital
notwithstanding the provisions of this Indenture referred to in Section 1216 or
(b) any event that results in the Company not being subject to capital
requirements under the rules, regulations or interpretations of the Board of
Governors of the Federal Reserve System (or other Federal banking supervisor).
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"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".
"Zions First National Bank" means Zions First National Bank,
a national banking association, together with its successors.
8
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be given
in the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirement set
forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been complied
with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company,
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
9
SECTION 1.04. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, PROVIDED that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such matter referred to in the
foregoing sentence, the record date for any such matter shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; PROVIDED that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any notice of Default, (ii) any request to institute
proceedings referred to in Section 507(2) or (iii) any direction
10
referred to in Section 512. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request
or direction, whether or not such Holders remain Holders after such record
date; PROVIDED that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be canceled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Company's expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Securities in the
manner set forth in Section 106.
With respect to any record date set pursuant to this
Section, the party hereto which sets such record dates may designate any day as
the "Expiration Date" and from time to time may change the Expiration Date to
any earlier or later day; PROVIDED that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration, or
11
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company, addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 1.06. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 1.08. 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 1.09. 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 1.10. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
12
SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than (a) the parties hereto and their
successors hereunder, (b) the holders of Senior Indebtedness, (c) the Holders of
Securities and (d) subject to Section 907, the creditors in respect of General
Obligations, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 1.12. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of
New York.
SECTION 1.13. LEGAL HOLIDAYS.
Except as otherwise specified in Section 202, in any case
where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Securities) payment of interest or principal (and
premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, PROVIDED
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 2.01. FORMS GENERALLY.
The Securities and the Trustee's certificates of
authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution thereof.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
Upon their original issuance, Original Securities shall be
issued in the form of one or more Global Securities registered in the name of
DTC, as Depositary, or its nominee and deposited with the Trustee, as custodian
for DTC, for credit by DTC to the respective accounts of beneficial owners of
the Securities represented thereby (or such other accounts as they may direct).
Such Global Securities, together with its Successor Securities which are Global
Securities, are collectively herein called the "Restricted Global Security".
13
SECTION 2.02. FORM OF FACE OF SECURITY.
THIS SECURITY IS AN UNSECURED SUBORDINATED DEBT OBLIGATION
OF ZIONS BANCORPORATION. THIS SECURITY IS NOT A DEPOSIT OR SAVINGS ACCOUNT AND
IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH
RESTRICTED SECURITY:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 OF REGULATION D UNDER THE
SECURITIES ACT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, AND (B) IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY,
THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL
PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"),
TO THE COMPANY 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 DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
14
THIS SECURITY MAY NOT BE EXCHANGEABLE IN WHOLE OR IN PART
FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.]
ZIONS BANCORPORATION
Fixed/Floating Rate Subordinated Notes due October 15, 2011
No._______ $___________________
ZIONS BANCORPORATION, a corporation duly organized and
existing under the laws of Utah (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to __________________, or registered
assigns, the principal sum of _________________ Dollars (such amount the
"principal amount" of this Security) [if the Security is a Global Security, then
insert -- or such other principal amount (which, when taken together with the
principal amounts of all other Outstanding Securities, shall not exceed
$200,000,000 in the aggregate at any one time) as may be set forth in the
records of the trustee hereinafter referred to in accordance with the Indenture,
] on October 15, 2011, and to pay interest thereon from October 25, 2001 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on April 15 and October 15 in each year commencing
April 15, 2002, until but excluding October 15, 2006, at the rate of 6.50% per
annum, and from October 15, 2006 until the principal hereof is paid or made
available for payment (such date, the "Principal Payment Date", and such period,
the "Floating Rate Period"), at the Floating Interest Rate.
During the Floating Rate Period, the per annum interest rate
on this Security (the "Floating Interest Rate") in effect for each day of an
Interest Reset Period (as defined below) will be equal to LIBOR (as defined
below) plus 301 basis points (3.01%), as determined by the Calculation Agent.
The Floating Interest Rate for each Interest Period will be set monthly on the
first day of each Interest Reset Period (as defined below) commencing October
15, 2006 (each such date, an "Interest Reset Date"). During the Floating Rate
Period, the amount of interest for each day this Security is outstanding (the
"Daily Interest Amount") shall be calculated by dividing the interest rate in
effect for that day by 360 and multiplying the result by the outstanding
principal amount of this Security. The amount of interest to be paid on this
Security for each Interest Reset Period shall be calculated by adding the Daily
Interest Amounts for each day in such Interest Reset Period.
In the event that an Interest Payment Date is not a Business
Day, the Company shall pay interest on the next day that is a Business Day, with
the same force and effect as if made on the Interest Payment Date, and without
any interest or other payment with respect to the delay; PROVIDED, HOWEVER, if
such Interest Payment Date occurs during the Floating Rate Period and such next
Business Day is in a different month, then the Company shall pay interest on the
Business Day immediately preceding that Interest Payment Date for the entire
Interest Reset Period. If the Principal Payment Date or earlier Redemption Date
falls on a day that is not a Business Day, the payment of principal and
interest, if any, need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Principal Payment Date or earlier Redemption Date, PROVIDED that no interest
shall accrue for the period from and after such Principal Payment Date or
earlier Redemption Date.
15
"LIBOR", with respect to an Interest Reset Period, shall be
the rate (expressed as a percentage per annum) for deposits in United States
dollars for a one-month period beginning on the second London Banking Day (as
defined below) after the Determination Date (as defined below) that appears on
Telerate Page 3750 (as defined below) as of 11:00 a.m., London time, on the
Determination Date. If Telerate Page 3750 does not include this rate or is
unavailable on the Determination Date, the Calculation Agent will request the
principal London office of each of four major banks in the London interbank
market, as selected by the Calculation Agent, to provide that bank's offered
quotation (expressed as a percentage per annum) as of approximately 11:00 a.m.,
London time, on the Determination Date to prime banks in the London interbank
market for deposits in a Representative Amount (as defined below) in United
States dollars for a one-month period beginning on the second London Banking Day
after the Determination Date. If at least two offered quotations are so
provided, LIBOR for the Interest Reset Period will be the arithmetic mean of
those quotations. If fewer than two quotations are so provided, the Calculation
Agent will request each of three major banks in
New York City, as selected by
the Calculation Agent, to provide that bank's rate (expressed as a percentage
per annum), as of approximately 11:00 a.m.,
New York City time, on the
Determination Date for loans in a Representative Amount in United States dollars
to leading European banks for a one-month period beginning on the second London
Banking Day after the Determination Date. If at least two rates are so provided,
LIBOR for the Interest Reset Period shall be the arithmetic mean of those rates.
If fewer than two rates are so provided, then LIBOR for the Interest Reset
Period shall be LIBOR in effect with respect to the immediately preceding
Interest Reset Period or, in the case of the first Interest Reset Period, the
rate per annum on this Security when first issued under the Indenture.
"Determination Date" with respect to an Interest Reset
Period shall be the second London Banking Day preceding the first day of the
Interest Reset Period.
"Interest Reset Period" shall mean each period, during the
Floating Rate Period, commencing on and including the fifteenth day of the month
and ending on and including the fourteenth day of the next succeeding month,
and, in the case of the last such period, commencing on and including the
fifteenth day of the month immediately preceding the Principal Payment Date, as
the case may be, to but not including the Principal Payment Date. The first
Interest Reset Period shall commence on and include October 15, 2006 and end on
and include November 14, 2006.
"London Banking Day" is any day in which dealings in the
United States dollars are transacted or, with respect to any future date, are
expected to be transacted in the London interbank market.
"Representative Amount" means a principal amount that is
representative for a single transaction in the relevant market at the relevant
time.
"Telerate Page 3750" means the display designated as "Page
3750" on the Bridge Telerate Service (or such other page as may replace Page
3750 on that service).
All percentages resulting from any of the above calculations
shall be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded upwards
(e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)) and all
dollar amounts used in or resulting from such calculations shall be rounded to
the nearest cent (with one-half cent being rounded upwards).
16
The Floating Interest Rate shall in no event be higher than
the maximum rate permitted by the law of the State of
New York, or, if higher,
the law of the United States of America.
Upon the request of the Holder of this Security, the
Calculation Agent shall provide the interest rate then in effect with respect to
this Security. All calculations of the Calculation Agent, in the absence of
manifest error, shall be conclusive for all purposes and binding on the Company
and the Holder of this Security. So long as the Floating Interest Rate is
required to be determined with respect to this Security, there shall at all
times be a Calculation Agent. In the event that any then acting Calculation
Agent shall be unable or unwilling to act, or that such Calculation Agent shall
fail duly to establish the Floating Interest Rate for any Interest Reset Period,
or that the Company proposes to remove such Calculation Agent, the Company shall
appoint, with the written consent of the Trustee, which consent shall not be
unreasonably withheld, another Person which is a bank, trust company, investment
banking firm or other financial institution to act as the Calculation Agent.
[If Original Securities, then insert: Pursuant to the
Exchange and Registration Rights Agreement (the "Registration Rights
Agreement"), dated as of October 25, 2001, by and between the Company and the
Purchasers (as defined therein), the Company has agreed for the benefit of the
Holders from time to time of the Securities that it will (i) file under the
Securities Act, no later than December 24, 2001, a registration statement (the
"Exchange Registration Statement") registering securities substantially
identical to the Securities (except that such securities will not contain terms
with respect to the Special Interest payments described below or transfer
restrictions) pursuant to an exchange offer (the "Exchange Offer"), (ii) use its
best efforts to cause the Exchange Registration Statement to become effective
under the Securities Act no later than April 23, 2002, and (iii) use its best
efforts to cause the Exchange Offer to remain open at least 30 business days and
to commence and complete the Exchange Offer no later than 45 days after the
Exchange Registration Statement has become effective; PROVIDED, HOWEVER, that if
(a) on or prior to the time the Exchange Offer is completed existing Commission
interpretations are changed such that this Security is not or would not be, upon
receipt under the Exchange Offer, transferable by the Holder of this Security
without restriction under the Securities Act, (b) the Exchange Offer has not
been completed by June 7, 2002 or (c) the Exchange Offer is not available to the
Holder of this Security, the Company has agreed, in lieu of (or, in the case of
clause (c), in addition to) conducting the Exchange Offer, to file under the
Securities Act no later than the later of 30 days after the time such obligation
to file arises, a "shelf" registration statement providing for the registration
of and the sale on a continuous or delayed basis by the Holder of this Security
(such registration statement, the "Shelf Registration Statement") and to use its
best efforts to cause the Shelf Registration Statement to become effective no
later than 120 days after it is filed.
In the event that (i) the Company has not filed the Exchange
Registration Statement or, if applicable, Shelf Registration Statement on or
before the date on which such registration statement is required to be filed in
the respective time frames provided above, or (ii) such Exchange Registration
Statement or, if applicable, Shelf Registration Statement has not become
effective on or before the date on which such registration statement is required
to become effective in the respective time frames provided above, or (iii) the
Exchange Offer has not been completed within 45 days after the initial effective
date of the Exchange Registration Statement (if the Exchange Offer is then
required to be made) or (iv) the Exchange Registration Statement or, if
applicable, Shelf Registration Statement is filed and declared effective but
shall thereafter either be withdrawn by the Company or shall become subject to
an effective stop order issued pursuant to Section 8(d) of the Securities Act
suspending the effectiveness of such registration
17
statement (except as specifically permitted in the Indenture) without being
succeeded immediately by an additional registration statement filed and
declared effective, in each case (i) through (iv) upon the terms and conditions
set forth in the Registration Rights Agreement (each such event referred to in
clauses (i) through (iv), a "Registration Default" and each period during which
a Registration Default has occurred and is continuing, a "Registration Default
Period"), then interest will accrue (in addition to any stated interest on this
Security) at a per annum rate of 0.25% for the first 90 days of the
Registration Default Period (the "Step-Up"), at a per annum rate of 0.50% for
the second 90 days of the Registration Default Period, at a per annum rate of
0.75% for the third 90 days of the Registration Default Period and at a per
annum rate of 1.0% thereafter for the remaining portion of the Registration
Default Period (each such increase, a "Subsequent Step-Up"). Interest accruing
as a result of the Step-Up or any Subsequent Step-Up (which shall be computed
on the basis of a 365-day year) is referred to herein as "Special Interest",
and will be payable at such increased rate until such time as the Registration
Default Period is no longer continuing, after which such interest rate will be
restored to its initial rate (such event, a "Step-Down Date"). Accrued Special
Interest, if any, shall be paid semi-annually on April 15 and October 15 in
each year; and the amount of accrued Special Interest shall be determined on
the basis of the number of days actually elapsed. Any accrued and unpaid
interest (including Special Interest) on this Security upon the issuance of an
Exchange Security (as defined in the Indenture) in exchange for this Security
shall cease to be payable to the Holder hereof but such accrued and unpaid
interest (including Special Interest) shall be payable on the next Interest
Payment Date for such Exchange Security to the Holder thereof on the related
Regular Record Date.]
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the April 1 or October 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of this Security not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in Xxx Xxxxxxxxx, Xxxxxxxxxx, Xxxx Xxxx Xxxx, Xxxx
and the Borough of Manhattan, The City of
New York and at any other office or
agency maintained by the Company for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; PROVIDED, HOWEVER, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
18
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated:
ZIONS BANCORPORATION
[corporate seal] By:
-----------------------
[Name]
[Title]
Attest:
-----------------------
[Name]
[Title]
SECTION 2.03. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of
Securities of the Company designated as its Fixed/Floating Rate Subordinated
Notes due October 15, 2011 (herein called the "Securities"), limited in
aggregate principal amount to $200,000,000, issued and to be issued under an
Indenture, dated as of October 25, 2001 (herein called the "Indenture"), between
the Company and Chase Manhattan Bank and Trust Company, National Association, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holder of this Security and of the terms
upon which this Security is, and is to be, authenticated and delivered.
This Security is subject to redemption upon not less than 30
days' notice by mail, at any time on or after October 15, 2006 on any Interest
Payment Date, as a whole or in part, at the election of the Company, at a
Redemption Price equal to 100% of the principal amount, together in the case of
any such redemption with accrued but unpaid interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
19
If an Event of Default shall occur and be continuing, the
principal of this Security may be declared due and payable in the manner and
with the effect provided in the Indenture. The principal of this Security may
not be declared due and payable upon a Default, defined in the Indenture as (i)
an Event of Default; (ii) failure to pay interest due on this Security,
continued for a period of 30 days; (iii) failure to pay principal of this
Security at Maturity; and (iv) failure to perform any other covenant or warranty
of the Company in the Indenture, continued for a period of 60 days after written
notice as provided in the Indenture, unless such a Default is an Event of
Default, although the Trustee may protect the rights of the Holder of this
Security by appropriate judicial proceeding as provided in the Indenture.
This Security does not have the benefit of any sinking fund
obligations.
This Global Security shall be exchangeable for Securities
registered in the names of Persons other than the Depositary or its nominee only
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as the Depositary or if at any time such Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, at a time
when such Depositary is required to be so registered in order to act as
Depositary, and the Company fails to appoint a successor Depositary under the
Indenture, (ii) the Company executes and delivers to the Trustee a Company Order
that the Global Security shall be so exchangeable or (iii) there shall have
occurred and be continuing an Event of Default with respect to the Securities.
To the extent that the Global Security is exchangeable pursuant to the preceding
sentence, it shall be exchangeable for Securities registered in such names as
the Depositary may direct. In the event of a deposit or withdrawal of an
interest in this Security (including upon an exchange, transfer, redemption or
repurchase of this Security in part only) effected in accordance with the
Applicable Procedures, the Security Registrar, upon receipt of notice of such
event from the Depository's custodian for this Security, shall make an
adjustment on its records to reflect an increase or decrease of the Outstanding
principal amount of this Security resulting from such deposit or withdrawal, as
the case may be.
Unless the context otherwise requires, the Original
Securities (as defined in the Indenture) and the Exchange Securities (as defined
in the Indenture) shall constitute one series for all purposes under the
Indenture, including without limitation, amendments, waivers and redemptions.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of 66 2/3% in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
20
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in San Francisco, California,
Salt Lake City, Utah or the Borough of Manhattan, The City of
New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
This Security shall be governed by and construed in
accordance with the laws of the State of New York, but without regard to
principles of conflict of laws.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
SECTION 2.04. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the
within-mentioned Indenture.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
AS TRUSTEE
By:
----------------------------
AUTHORIZED OFFICER
21
ARTICLE THREE
The Securities
SECTION 3.01. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $200,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306 or 906.
The Securities shall be known and designated as the
"Fixed/Floating Rate Subordinated Notes due October 15, 2011" of the Company.
Their Stated Maturity shall be October 15, 2011, and they shall bear interest at
the rate provided for in the Form of Face of Security in Section 202 from
October 25, 2001 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, as the case may be, payable semi-annually on
April 15 and October 15 in each year commencing April 15, 2002, until the
principal thereof is paid or made available for payment; PROVIDED, HOWEVER, with
respect to Original Securities, if there has been a Registration Default, a
Step-Up will occur and the Original Securities will from then bear Special
Interest until the Registration Default Period is no longer continuing and, if
the Registration Default Period continues for the applicable period, Subsequent
Step-Ups will occur and the Original Securities will from then bear Special
Interest until the Registration Default Period is no longer continuing. Accrued
Special Interest, if any, shall be paid in cash in arrears semi-annually on
April 15 and October 15 in each year, and the amount of accrued Special Interest
shall be determined on the basis of the number of days actually elapsed. In
connection with the cash payment of any Special Interest, the Company shall
notify the Trustee (the "Special Interest Notice") on or before the later to
occur of (i) the Regular Record Date preceding such payment of any Special
Interest, and (ii) the date on which any such Special Interest begins to accrue,
of the amount of Special Interest to be paid by the Company on the next Interest
Payment Date. In the event of the occurrence of a Step-Down Date during the
period between the date on which the Special Interest Notice is given and the
next Interest Payment Date, the Company shall so notify the Trustee and shall
provide the Trustee with the revised amount of Special Interest to be paid by
the Company on such Interest Payment Date.
If the Security is issued in the form of a Global Security,
payments of the principal of (and premium, if any) and interest on this Security
shall be made in immediately available funds to the Depositary. If the
Securities are issued in certificated form, the principal of (and premium, if
any) and interest on the Securities shall be payable at the office or agency of
the Company in Xxx Xxxxxxxxx, Xxxxxxxxxx, Xxxx Xxxx Xxxx, Xxxx and the Borough
of Manhattan, The City of New York maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; PROVIDED, HOWEVER,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall not have the benefit of any sinking
fund obligations.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Twelve.
22
Unless the context otherwise requires, the Original
Securities and the Exchange Securities shall constitute one series for all
purposes under the Indenture, including without limitation, amendments, waivers
and redemptions.
SECTION 3.02. DENOMINATIONS.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
SECTION 3.04. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in
23
exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided. Such Security
Register shall distinguish between Original Securities and Exchange Securities.
Upon surrender for registration of transfer of any Security
at an office or agency of the Company designated pursuant to Section 1002 for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, and subject to the other
provisions of this Section 305, Securities may be exchanged for other Securities
and bearing such restrictive legends as may be required by this Indenture of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304 or 906 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1104 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
24
Notwithstanding any other provision of this Indenture, a
beneficial interest in a Global Security may not be transferred to, or
registered or exchanged for a Security registered in the name of any Person
other than the Depositary for such Global Security or any nominee thereof, and
no such transfer may be registered, unless (i) the Depositary (x) notifies the
Company it is unwilling or unable to continue as Depositary for the Global
Security or (y) has ceased to be a clearing agency registered under the Exchange
Act and in either case the Company thereupon fails to appoint a successor
Depositary, (ii) the Company, at its option, executes and delivers a Company
Order that the Global Security shall be exchangeable, or (iii) there shall have
occurred and be continuing an Event of Default with respect to the Securities
evidenced by the Global Security. Notwithstanding any other provision of this
Indenture, a Global Security to which the restriction set forth in the preceding
sentence shall have ceased to apply may be transferred only to, and may be
registered only in the name or names of, such Person or Persons as the
Depositary for such Global Security shall have directed and no transfer thereof
other than such a transfer may be registered.
Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to Section 304, 305, 306 or 906 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security.
If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for a Global Security has
ceased to be a clearing agency registered as such under the Exchange Act, at a
time when the Depositary for a Global Security is required to be so registered
in order to act as a Depositary, the Company shall appoint a successor
Depositary with respect to such Global Security. If a successor Depositary is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, the Company shall execute, and the
Trustee, upon receipt of a Company Order for authentication and delivery of
definitive Securities, shall authenticate and deliver Securities in a definitive
registered form in an aggregate principal amount of the Global Security in
exchange for such Global Security.
The Company may at any time and in its sole discretion
determine that the Securities issued in the form of one or more Global
Securities shall no longer be represented by a Global Security. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order for
authentication and delivery of definitive Securities, shall authenticate and
deliver Securities in a definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security, in exchange for such Global Security.
Upon the exchange of a Global Security for Securities in a
definitive registered form in authorized denominations, such Global Security
shall be canceled by the Trustee. Securities in a definitive registered form
issued in exchange for a Global Security pursuant to this Section 305 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary shall have any rights under this Indenture
with respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or
25
the Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder of
any Security.
Original Securities and their Successor Securities shall
bear a Restricted Securities Legend. Registered Securities shall not bear a
Restricted Securities Legend.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security, of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of
26
having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
27
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or Trustee, or any agent of the Company
or the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by an Depositary (or its nominee), as a Holder, with
respect to such Security in global form or impair, as between such Depositary
and owners of beneficial interests in such Security in global form, the
operation of customary practices governing the exercise of the rights of such
Depositary (or its nominee) as Holder of such Security in global form.
SECTION 3.09. CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly canceled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled 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 this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 3.10. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of
a 360-day year of twelve 30-day months.
SECTION 3.11. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.
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 the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
28
(A) all Securities theretofore authenticated
and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore
been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory
to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 4.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly
29
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee.
ARTICLE FIVE
Remedies
SECTION 5.01. EVENTS OF DEFAULT.
(a) "Event of Default", wherever used herein, means any one
of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a receiver or
other similar official of the Company or of all of its assets, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(2) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization relief under any
applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a
receiver or similar official of the Company or of all or substantially
all of its assets or the taking of corporate action by the Company in
furtherance of any such action; or
(3) (A) the appointment by a competent government
agency having primary regulatory authority over Zions First National
Bank or California Bank & Trust under any applicable Federal or State
banking, insolvency or similar law now or hereafter in effect of a
receiver, conservator or other similar official for Zions First
National Bank or California Bank & Trust or for all or substantially
all of their respective assets or (B) the entry of a decree or order
in any case or proceeding under any applicable Federal or State
banking, insolvency or other similar law now or hereafter in effect
adjudging Zions First National Bank or California Bank & Trust
insolvent or bankrupt, or appointing any receiver, conservator or
other similar official for Zions First National Bank or California
Bank & Trust or for all or substantially all
30
of their respective assets, or ordering the winding up or liquidation
of their respective affairs; or
(4) (A) the filing by Zions First National Bank or
California Bank & Trust with any competent government agency having
primary regulatory authority over Zions First National Bank or
California Bank & Trust of a notice of voluntary liquidation or other
similar action under any applicable Federal or State banking,
insolvency or other similar law now or hereafter in effect or (B) the
commencement by Zions First National Bank or California Bank & Trust
of any case or proceeding under any applicable Federal or State
banking, insolvency or other similar law now or hereafter in effect to
be adjudicated insolvent or bankrupt or seeking the appointment of a
receiver, conservator or other similar official for Zions First
National Bank or California Bank & Trust or for all or substantially
all of their respective assets or the consent by Zions First National
Bank or California Bank & Trust to the entry of a decree or order in
any case or proceeding under the Federal or State banking, insolvency
or other similar laws adjudging Zions First National Bank or
California Bank & Trust insolvent or bankrupt, or appointing any
receiver, conservator or other similar official for Zions First
National Bank or California Bank & Trust or for all or substantially
all of their respective assets, or ordering the winding up or
liquidation of their respective affairs, or the taking of any
corporate action by Zions First National Bank or California Bank &
Trust in furtherance of such action.
(b) "Default", wherever used herein, means any one of the
following events (whatever the reason for such Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation or any
administrative or governmental body):
(1) an Event of Default specified in Section 501(a);
or
(2) default in the payment of any interest upon any
Security when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(3) default in the payment of the principal of any
Security at its Maturity; or
(4) default in the performance or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), 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 a written notice
specifying such default or breach and requiring it to be remedied an
stating that such notice is a "Notice of Default" hereunder.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities may declare the principal of all the
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal shall become immediately due and payable.
31
At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by
such declaration of acceleration and interest thereon
at the rate borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate
borne by the Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel;
and
(2) all Events of Default, other than the
non-payment of the principal of Securities which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest
on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee to the Company, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate borne by the Securities, and, in addition thereto, such further amount
32
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Security and
collect the monies adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Security,
wherever situated.
If a Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of the
creditors' or other similar committee.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
33
SECTION 5.06. APPLICATION OF MONEY COLLECTED.
Subject to Article Twelve, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for principal of (and
premium, if any) and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively.
SECTION 5.07. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Default;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
34
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11. 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 Default shall impair
any such right or remedy or constitute a waiver of any such Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 5.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture or expose the Trustee to personal
liability, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount
of the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
35
(1) in the payment of the principal of (or premium,
if any) or interest on any Security, or
(2) in respect of a covenant or provision hereof
which under Article Ten cannot be modified or amended without the
consent of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; PROVIDED, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 5.15. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.
Except as otherwise provided, the duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers.
The Trustee shall, prior to the occurrence of a Default or
Event of Default of which the Trustee is deemed to have knowledge, and after the
curing of all Defaults or Events of Default which may have occurred, perform
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture or any other related document against the Trustee. The right of the
Trustee to perform any
36
discretionary act enumerated or contemplated in this Indenture or other related
documents shall not be construed as a duty.
The Trustee shall, during the existence of any Default or
Event of Default which it is deemed to have knowledge of and which has not been
cured, exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of the prudent
person's own affairs.
The Trustee shall not be liable for any error of judgment
made in good faith by any Responsible Officer of the Trustee unless the Trustee
was negligent in ascertaining the pertinent facts. The Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a majority in aggregate
principal amount of the Securities Outstanding relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
the exercise of any trust or power conferred upon the Trustee, under this
Indenture. Notwithstanding the foregoing, no provision of this Indenture shall
be construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own wilful misconduct.
Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; PROVIDED,
HOWEVER, that in the case of any default of the character specified in Section
501(b)(4), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
a Default.
The Trustee shall not be charged with knowledge of any
Default or Event of Default under this Indenture or related documents unless (i)
a Responsible Officer of the Trustee shall have actual knowledge of such Default
or Event of Default or (ii) the Trustee shall have received notice in writing of
such Default or Event of Default by the Company or by the Holders of at least
twenty-five percent (25%) in aggregate principal amount of the Securities then
Outstanding.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
37
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may request and, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney; and
(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.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
38
SECTION 6.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith;
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder; and
(4) whether or not herein expressly provided, every
provision of this Indenture and of other related documents relating to
the rights, privileges, protections, immunities and benefits given to
the Trustee hereunder, including without limitation its right to be
indemnified, shall (a) be subject to this Article, (b) apply to and be
enforceable by, the Trustee in each of its capacities hereunder,
including without limitation its capacity as Paying Agent and Security
Registrar and (c) extend to directors, officers and employees of the
Trustee.
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has (or in the case of a corporation included in a bank holding company
system, the related holding company has) a combined capital and surplus of at
least $50,000,000 and its Corporate Trust Office in the Borough of Manhattan,
The City of New York. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
39
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office
of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each
resignation and each removal of the Trustee and each appointment of a
successor Trustee to all Holders in the manner provided in Section
106. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
40
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
41
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 7.03. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.04. REPORTS BY COMPANY.
The Company and shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
PROVIDED that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
42
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall not permit any
Person to consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to the Company,
unless
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety
shall be a corporation, partnership, limited liability company, or
trust, shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation
of the Company or a Subsidiary as a result of such transaction as
having been incurred by the Company or such Subsidiary at the time of
such transaction, no Event of Default or Default, and no event which,
after notice or lapse of time or both, would become an Event of
Default or Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 8.02. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
43
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(3) to secure the Securities; or
(4) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to comply with any
requirement of the Commission in order to effect qualification of this
Indenture under the Trust Indenture Act in connection with the
issuance of Exchange Securities or thereafter to maintain the
qualification of this Indenture under the Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, PROVIDED that such
action pursuant to this Clause (5) shall not adversely affect the
interests of the Holders in any material respect.
Notwithstanding any provision in this Indenture or
otherwise, the rights of creditors in respect of General Obligations under this
Indenture and otherwise in respect of the Securities may, at any time and from
time to time, be reduced or eliminated by a supplemental indenture entered into
by the Company and the Trustee, which supplemental indenture will not require
the consent of the Holders of Securities or any creditor in respect of General
Obligations.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of interest on, any Security, or reduce the
principal amount thereof or the rate of interest
44
thereon or any premium payable upon the redemption thereof, or change
the place of payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase any such percentage or
to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by
45
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 9.07. SUBORDINATION IMPAIRED.
(a) No provision in any supplemental indenture that affects
the superior position of the holders of Senior Indebtedness shall be effective
against any holder of Senior Indebtedness, unless such holder shall have
consented thereto.
(b) Notwithstanding any provision in this Indenture or
otherwise, the rights of creditors in respect of General Obligations under this
Indenture and otherwise in respect of the Securities may, at any time and from
time to time, be reduced or eliminated by a supplemental indenture entered into
by the Company and the Trustee, which supplemental indenture will not require
the consent of the Holders of Securities or any creditor in respect of General
Obligations.
ARTICLE TEN
Covenants
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities in accordance with the
terms of the Securities and this Indenture.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in Xxx Xxxxxxxxx, Xxxxxxxxxx, Xxxx
Xxxx Xxxx, Xxxx and in the Borough of Manhattan, The City of New York an office
or agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in Xxx Xxxxxxxxx, Xxxxxxxxxx, Xxxx Xxxx Xxxx, Xxxx and in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
46
SECTION 10.03. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of (and premium, if
any) or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents,
it will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon the Securities) in the
making of any payment in respect of the Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order, direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 10.04. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
47
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.05. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory), as applicable, and franchises, and
the existence, rights (charter and statutory) and franchises of any Major
Constituent Bank; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 10.06. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 10.07. COMPANY STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement, which need not comply
with Section 102, signed by the Chairman of the Board, a Vice Chairman, the
President or a Vice President and by the Treasurer or an Assistant Treasurer of
the Company, stating, as to each signer thereof, that
(1) a review of the activities of the Company during
such year and of performance under this Indenture has been made under
his supervision, and
(2) to the best of his knowledge, based on such
review, (a) the Company has fulfilled all its obligations under this
Indenture throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him 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 under Section 501, or a
Default under Section 501 or, if such event has occurred and is
continuing, specifying such event known to him and the nature and
status thereof.
SECTION 10.08. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any covenant or condition set forth in Sections 1005 to 1007, inclusive, if
before the time for such compliance the Holders of at least 66 2/3% in principal
amount of the Outstanding Securities shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or
48
condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 11.01. RIGHT OF REDEMPTION.
The Securities may be redeemed at the election of the
Company, as a whole or from time to time in part, at any time on or after
October 15, 2006 on any Interest Payment Date, at the Redemption Price specified
in the form of Security hereinbefore set forth, together with accrued interest
to the Redemption Date.
SECTION 11.02. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company, as
permitted by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 11.03. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
pursuant to Section 1101 shall be evidenced by a Board Resolution. In case of
any redemption at the election of the Company of less than all the Securities,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities to
be redeemed.
SECTION 11.04. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities 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 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 (equal to $1,000 or any integral multiple thereof) of the principal
amount of Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each
Security Registrar 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 amount of such Securities which has been
or is to be redeemed.
49
SECTION 11.05. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall identify the Securities to
be redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are
to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed and
that interest thereon will cease to accrue on and after said date, and
(5) the place or places where such Securities are to
be surrendered for payment of the Redemption Price.
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 11.06. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
SECTION 11.07. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest 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 relevant Record
Dates according to their terms and the provisions of Section 307.
50
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
SECTION 11.08. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (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 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
Subordination of Securities
SECTION 12.01. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the indebtedness
represented by the Securities and the payment of the principal of (and premium,
if any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
SECTION 12.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshaling of assets and liabilities of the Company, then
and in any such event the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in respect of
all Senior Indebtedness, or provision shall be made for such payment, before the
Holders of the Securities are entitled to receive any payment on account of
principal of or interest on the Securities, and to that end the holders of
Senior Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, which may be payable or deliverable in respect of the
Securities in any such case, proceeding, dissolution, liquidation or other
winding up or event.
Upon the occurrence of any of the events described in
clauses (a), (b) or (c) of the immediately preceding paragraph, in the event
that notwithstanding the foregoing provisions of this Section the Trustee or the
Holder of any Security shall have received any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
51
securities, before all Senior Indebtedness is paid in full or payment thereof
provided for, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its properties and assets substantially
as an entirety to another Person upon the terms and conditions set forth in
Article Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of assets
and liabilities of the Company for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or which
acquires by conveyance or transfer such properties and assets substantially as
an entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the respective conditions set forth in
Article Nine.
SECTION 12.03. PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION OF
SECURITIES.
In the event that any Securities are declared due and
payable before their Stated Maturity, then and in such event the holders of the
Senior Indebtedness outstanding at the time such Securities so become due and
payable shall be entitled to receive payment in full of all amounts due or to
become due on or in respect of all such Senior Indebtedness, or provision shall
be made for such payment in cash in money or money's worth, before the Holders
of the Securities are entitled to receive any payment by the Company on account
of the principal of or interest on the Securities or on account of the purchase
or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee or,
as the case may be, such Holder, then and in such event such payment shall be
paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any
payment with respect to which Section 1202 would be applicable.
SECTION 12.04. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
(a) In the event and during the continuation of any default
in the payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or, or (b)
in the event any judicial proceeding shall be pending with respect to any such
default, then no payment shall be made by the Company on account of principal of
or interest on the Securities or on account of the purchase or other acquisition
of Securities.
In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known
52
to the Trustee or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any
payment with respect to which Section 1202 would be applicable.
SECTION 12.05. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 1202 or under the
conditions described in Section 1203 or 1204, from making payments at any time
of principal of or interest on the Securities, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on account
of the principal of (and premium, if any) or interest on the Securities or the
retention of such payment by the Holders, if, at the time of such application by
the Trustee, it did not have knowledge that such payment would have been
prohibited by the provisions of this Article.
SECTION 12.06. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness,
the Holders of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is
subordinated to indebtedness of the Company to substantially the same extent as
the Securities are subordinated and is entitled to like rights of subrogation)
to the rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness.
SECTION 12.07. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders of the Securities
on the one hand and the holders of Senior Indebtedness (and, in the case of
Section 1215, the creditors of General Obligations) on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional and which, subject to the
rights under this Article of the holders of Senior Indebtedness (and the rights
under Section 1215 of creditors in respect of General Obligations), is intended
to rank equally with all other General Obligations of the Company, to pay to the
Holders of the Securities the principal of and interest on the Securities as and
when the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any
53
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, (and under Section
1215 of creditors in respect of General Obligations) under this Article of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 12.08. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 12.09. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 12.10. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Indebtedness or from any trustee
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; PROVIDED, HOWEVER, that if the Trustee shall
not have received the notice provided for in this Section at least five Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within five Business Days prior to such date.
54
Subject to the provisions of Section 601, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness or a trustee therefor
(or a creditor in respect of General Obligations) to establish that such notice
has been given by a holder of Senior Indebtedness or a trustee therefor (or a
creditor in respect of General Obligations). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness (or a creditor in respect
of General Obligations) to participate in any payment or distribution pursuant
to this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
(or General Obligations) held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 12.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
601, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company (and the creditors in respect of General Obligations), the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 12.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS (OR
CREDITORS IN RESPECT OF GENERAL OBLIGATIONS).
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness (or creditors in respect of General
Obligations) and shall not be liable to any such holders (or creditors in
respect of General Obligations) if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness (or
creditors in respect of General Obligations) shall be entitled by virtue of this
Article or otherwise.
SECTION 12.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Indebtedness
which may at any time be held by it (or with respect to any General Obligations
owed to the Trustee as a creditor), to the same extent as any other holder of
Senior Indebtedness (or creditors in respect of General Obligations as the case
may be), and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
55
SECTION 12.14. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; PROVIDED,
HOWEVER, that Section 1213 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 12.15. PAYMENT OF PROCEEDS IN CERTAIN CASES.
(a) Upon the occurrence of any of the events specified in
clauses (a), (b) and (c) of the first paragraph of Section 1202, the provisions
of that Section shall be given effect to determine the amount of cash, property
or securities which may be payable or deliverable as between the holders of
Senior Indebtedness, on the one hand, and the Holders of Securities, on the
other hand.
(b) If, after giving effect to the provisions of Section
1202 and Section 1206, any amount of cash, property or securities of the Company
shall be available for payment or distribution in respect of the Securities
("Excess Proceeds"), and any creditors in respect of General Obligations shall
not have received payment in full of all amounts due or to become due on or in
respect of such General Obligations, then such Excess Proceeds shall first be
applied (ratably with any amount of cash, property or securities available for
payment or distribution in respect of any other indebtedness of the Company that
by its express terms provides for the payment over of amounts corresponding to
Excess Proceeds to creditors in respect of General Obligations) to pay or
provide for the payment of the General Obligations remaining unpaid, to the
extent necessary to pay all General Obligations in full, after giving effect to
any concurrent payment or distribution to or for creditors in respect of General
Obligations. Any Excess Proceeds remaining after the payment (or provision for
payment) in full of all General Obligations shall be available for payment or
distribution in respect of the Securities.
(c) In the event that, notwithstanding the foregoing
provisions of subsection (b) of this Section, the Trustee or Holder of any
Security shall have received any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
before all General Obligations are paid in full or payment thereof duly provided
for, and if such fact shall, at or prior to the time of such payment or
distribution have been made known to the Trustee or, as the case may be, such
Holder, then and in such event, subject to any obligation that the Trustee or
such Holder may have pursuant to Section 1202, such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of asset of the Company for payment in accordance with
subsection (b).
(d) Subject to the payment in full of all General
Obligations, the Holders of the Securities shall be subrogated (equally and
ratably with the holders of all indebtedness of the Company that by its express
terms provides for the payment over of amounts corresponding to Excess Proceeds
to creditors in respect of General Obligations and is entitled to like rights of
subrogation) to the rights of the creditors in respect of General Obligations to
receive payments and distributions of cash, property and securities applicable
to the General Obligations until the principal of and interest on the Securities
shall be paid in full. For purposes of such subrogation, no payments or
distributions to creditors in respect of General Obligations of any cash,
property
56
or securities to which Holders of the Securities or the Trustee would
be entitled except for the provisions of this Section, and no payments over
pursuant to the provisions of this Section to creditors in respect of General
Obligations by Holders of Securities or the Trustee, shall, as among the
Company, its creditors other than creditors in respect of General Obligations
and the Holders of Securities be deemed to be a payment or distribution by the
Company to or on account of the General Obligations.
(e) The provisions of subsections (b), (c) and (d) of this
Section are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the creditors in
respect of General Obligations, on the other hand, after giving effect to the
rights of the holders of Senior Indebtedness, as provided in this Article.
Nothing contained in subsections (b), (c) and (d) of this Section is intended to
or shall affect the relative rights against the Company of the Holders of the
Securities and (1) the holders of Senior Indebtedness or (2) other creditors of
the Company other than creditors in respect of General Obligations.
SECTION 12.16. AUTOMATIC TERMINATION.
Upon the occurrence of a Termination Event, the Company will
promptly notify the Trustee and the following provisions of this Indenture shall
immediately and automatically terminate, be null and void ab initio and have no
further effect: the definitions of "Claim", "Excess Proceeds" and "General
Obligations"; subsection (d) of Section 111; the third paragraph of Section 203;
the last paragraph of Section 901; subsection (b) of Section 907; all language
in each parenthetical containing the words "General Obligations" in Sections
1207, 1210, 1211, 1212 and 1213; and Section 1215. The Trustee shall have the
right at any time to request that the Company supply it with an Opinion of
Counsel as to whether a Termination Event shall have occurred.
--------------------
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.
57
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and the Company's corporate seal to be hereunto
affixed and attested, all as of the day and year first above written.
ZIONS BANCORPORATION
By: /s/ W. Xxxxx Xxxxxxxxx
---------------------------------
W. Xxxxx Xxxxxxxxx
Executive Vice President and
Interim Chief Financial Officer
Attest:
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxxx
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxx
---------------------------------
Xxxxx X. Xxxx
Assistant Vice President
58
STATE OF UTAH ) ss.:
COUNTY OF SALT LAKE )
On the 25TH day of October 2001, before me personally came
W. Xxxxx Xxxxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is the Executive Vice President and Interim Chief Financial Officer of
Zions Bancorporation, a Utah corporation, 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.
My Commission Expires: 5-14-04 /s/ Xxxxxx X. Xxxx
------------------- --------------------------
Notary Public
[Seal of Notary Public]
Residing in: SLC County, Utah
-------------------------
-------------------------
59
